PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  26 February 2002
	DOCKET NUMBER:  AR2001060815

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

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Raymond J. Wagner		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests amendment of his retirement date by four additional days.  In an amendment to his application he requests that he be placed on excess leave for five additional days for active duty credit.

3.  The applicant states that he was informed that his retirement date would credit him with 20 years Active Federal Service (AFS).  This is now adversely affecting his retirement benefits based on recent legislation.

4.  The applicant’s military records show that he was serving on active duty in the pay grade of E-7.  A 26 May 1992 Medical Evaluation Board found the applicant unfit for further military service and recommended him for a Physical Evaluation Board (PEB).  On 17 September 1992, the Physical Disability Agency (PDA) made a final decision on behalf of the Secretary of the Army that the applicant be retired by reason of physical disability rated at 40 percent.

5.  Effective 26 October 1992, the applicant was separated by reason of physical disability.  He had 19 years, 11 months, and 27 days AFS.

6.  Between 1993 and 1995 the Veterans Administration (VA) ruled that the applicant was 100 percent service connected disabled.

7.  Title 10, U. S. Code, section 1413, provides special compensation for certain severely disabled soldiers.  Effective 1 October 2001, eligible retired, disabled soldiers will receive a monthly payment if their disability is rated 70 percent or higher by the service concerned at the time of retirement or the Department of Veterans Affairs within 4 years following retirement.

8.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

9.  Army Regulation 600-8-10 provides the policy for leaves and passes.  It provides, in pertinent part, that excess leave is a nonchargeable absence granted for emergency or unusual circumstances.  It also states that excess leave is without pay and allowances.

10.  Information provided by the Physical Disability Agency indicates that their goal is to timely process all disability separations and retirements.  Additionally, they do take note of those soldiers who are also approaching 20 years of AFS.

CONCLUSIONS:

1.  The applicant was retired by reason of physical disability in accordance with law and regulation in effect at the time.  There was no error or injustice in the applicant’s retirement by reason of physical disability.
2.  Notwithstanding that the applicant was appropriately retired in a timely manner, it appears that his retirement on 26 October 1992, has worked an injustice on him by denying him a more favorable status.

3.  It is reasonable to assume that the PDA would have directed his separation on 31 October 1992, if they had been cognizant of his pending 20 years of AFS.  There was no apparent operational or medical necessity for an earlier separation.

4.  Accepting the applicant’s request for 5 days of excess leave, from 27 to 31 October 1992, will allow him to be credited with 20 years AFS.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:

	a.  amending the order and the DD Form 214 (Certificate of Release or Discharge from Active Duty) that separated him to show his effective date of physical disability retirement as 31 October 1992, and his placement on the retired list as 1 November 1992, and;

	b.  correcting his record of service on his DD Form 214 to show in block 12b. “92 10 31” and block 12c. “15 00 26.”

BOARD VOTE:  

_jl_____  __rd___  __rw____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Joann Langston_
		        CHAIRPERSON

INDEX

CASE ID	AR2001060815	
SUFFIX		
RECON		
DATE BOARDED	20020226	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.01	
2.		
3.		
4.		
5.		
6.