MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 October 2000                   
	DOCKET NUMBER:   AR2000045310

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Ms. Carol Jo Suiter		Member	
	Mr. John E. Denning		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his disability retirement be changed to a length of service retirement.  He also requests information as to whether or not he is eligible for a 10 percent increase in retired pay for heroism while on active duty.

APPLICANT STATES:  That changing his retirement would allow him to enroll in the program that was made effective 1 October 1999 for severely disabled veterans.  He did not knowingly accept a 30 percent disability rating because he had other injuries that had to be judged for disability and only the VA could do that.  He kept the Army from medically discharging him for years after he was injured in a 90-foot fall from a helicopter while in Vietnam.  He would not knowingly have let them medically retire him after his heart attack if he could have.  While on his terminal leave, he had been hired to work for the Multinational Force and Observers and left the States on 4 December 1988.  The orders are dated 19 December 1988.  Had he known at the time, he would have made a case of it.  He was retired form the military, not medically retired.  Even his Certificate of Release or Discharge from Active Duty, DD Form 214, shows that he received a regular retirement.  His Certificate of Retirement does not state he was retired for physical disability.  He cannot allow an order to hinder him from receiving money he deserves, has earned, and needs because of an error made by someone in personnel.  

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 11 September 1958.  

On 5 February 1988, the applicant applied for voluntary retirement to be effective 1 October 1988. 

On 6 June 1988, the applicant sustained a myocardial infarction.

An undated entry by Cardiology Service on plain bond paper states in part “Medical Board – consider for 120 day trial of active duty with return to full duty if successfully completed.”

On 21 June 1988, approval was received to revoke the applicant’s approved retirement.

On 29 July 1988, the applicant was approved for retention on active duty for continued medical care and that he would be immediately processed for separation upon completion of medical care.  

On 14 November 1988, an informal Physical Evaluation Board (PEB) determined the applicant was unfit for duty due to arteriosclerotic heart disease with myocardial infarction and recommended his permanent retirement with a            30 percent disability rating.  
On 16 November 1988, the applicant concurred in the findings and recommendation of the informal PEB and waived a formal hearing of his case.  

Orders 196-02, U. S. Army Medical Department Activity, Fort Bragg NC dated     16 November 1988 assigned the applicant to his home in Fayetteville, NC pending permanent disability retirement at 30 percent.

Orders D238-7, U. S. Army Military Personnel Center dated 14 December 1988 relieved the applicant from assignment and duty because of physical disability and placed him on the retired list 9 February 1989 with a 30 percent disability rating.

Orders 212-02, Headquarters, U. S. Army Medical Department Activity, Fort Bragg NC dated 19 December 1988 placed the applicant on the Permanent Disability Retired List effective 9 February 1989 with a disability rating of 30 percent.

On 8 February 1989, the applicant was released from active duty due to a permanent physical disability after completing 30 years, 4 months and 28 days of creditable active service.  His DD Form 214 shows the narrative reason for separation as physical disability – permanent.  It also shows that his awards included the Silver Star and the Soldiers Medal.  (The applicant provided Copy 1 of his DD Form 214, which does not contain the Special Additional Information which includes the narrative reason for separation, as supporting evidence.  Copy 2, the service copy, shows in item 30 that the applicant requested copy 4.  Copy 4 is identical to Copy 2.)

On 9 February 1988, the applicant was placed on the retired list.  His Certificate of Retirement shows he was retired on this date.

On 1 July 1989, the VA awarded the applicant a combined 70 percent disability rating for heart disease (30 percent), traumatic arthritis (20 percent), left lower claw foot (20 percent), back condition (20 percent), and tinnitus (10 percent).

Public Law 106-65, dated 5 October 1999, added section 1413 to Title 10, U. S. Code.  It provides special compensation ($100, $200, or $300 per month if the qualifying service-connected disability is rated as 70 or 80 percent, 90 percent, or 100 percent, respectively) for certain severely disabled retirees.  An eligible member is a retired member who is not retired for disability, is in a retired status, and has 20 or more years of service for purposes of computing retired pay.  

Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  In pertinent part, it states that coronary heart disease associated with myocardial infarction is a cause for referral to a medical evaluation board (MEB).  A trial of duty may be based upon physician recommendation when the individual is asymptomatic without objective evidence of myocardial ischemia and when other indications show it is medically advisable. The trial of duty will be for 120 days.  An MEB will be accomplished prior to commencing the trial of duty period.  Upon completion of the period, an MEB addendum will be completed.  The results of the MEB and MEB addendum will be forwarded to a PEB.  

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Chapter 6 prescribes procedures under which certain soldiers of the Active Army who are eligible for retirement because of physical disability may be continued on active duty (COAD).  The primary objective of the program is to conserve manpower by effective use of needed skills or experience. 

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

The Department of Defense Financial Management Regulation (DODFMR) provides that enlisted members retired after the completion of 20 but less than 30 years of active service are eligible to receive 10 percent additional retired or retainer pay if credited with extraordinary heroism in the line of duty.  The Secretary of the Military Department concerned has the authority to grant this additional pay.

Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  In pertinent part, it defines extraordinary heroism as an act or acts of heroism or gallantry involving the risk of life.  The minimum level of such valorous performance in combat is consistent with a recommendation for the Distinguished Service Cross.  The Distinguished Service Cross is ranked below the Medal of Honor and above all other personal decorations.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The Board does not agree with the applicant’s contention that he was not aware he was retired for physical disability.  On 14 November 1988, an informal PEB determined he was unfit for duty and recommended his permanent retirement with a 30 percent disability rating.  On 16 November 1988, he concurred in the findings and recommendation of the informal PEB and waived a formal hearing of his case.  Orders of this date assigned him to his home pending permanent disability retirement at 30 percent.  The Board concludes that he knew on this date he was going to be retired for physical disability.  Several orders he received after this date showed he would be retired for physical disability.  His DD Form 214, which he signed and of which he requested to receive Copy 4, showed he retired by reason of physical disability.  His Certificate of Retirement is a standard certificate used for all types of retirement.  As a senior noncommissioned officer, he should have been aware that voluntary retirements are effective the first day of the month.  If he had any doubts as to the type of retirement he received, he should have questioned at the time why his Certificate Retirement showed he was retired on the ninth day of the month and not the first.

3.  The applicant, a command sergeant major, discovered this “error” ten years after his retirement and after a law was passed that would have provided him extra benefits had his retirement not been for physical disability.  He provides no convincing evidence to show he did not know in 1989 that he was retiring due to physical disability.  

4.  The Board concludes the applicant should be justifiably proud of having earned the Silver Star and the Soldiers Medal; however, he is not entitled to heroism pay.  The Secretary of the Army has determined that extraordinary heroism is commensurate with award of the Distinguished Service Cross or the Medal of Honor only. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jdm___  __cjs___  __jed___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000045310	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.