RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           04 MAY 2004                   
	DOCKET NUMBER:   AR2003093058

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Joe Schroeder		Member	
	Mr. William Powers		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  In effect, the applicant requests that his records be corrected to show that he was transferred to the Retired Reserve in lieu of being discharged.

2.  The applicant states there were two forms in his records at St. Louis that he never signed or had a chance to look at.  They are dated after the date that he signed the Physical Evaluation Board (PEB) proceedings.  There is information on the two documents that would have changed his decision had he known about them.  He was given two options; however, he was not given the option to transfer to an inactive status, which he would have chosen.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of a 6 December 1991 memorandum from the Physical Disability Branch, Total Army Personnel Command (PERSCOM), requesting that he elect an option, either transfer to the Retired Reserve or discharge with disability severance pay; a copy of the election form; and a copy of an 18 September 1991 PEB proceedings. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 19 December 1991.  The application submitted in this case is dated 16 June 2003.  

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army for three years on 24 February 1967, completed training, served in Vietnam from December 1967 to December 1968, and was assigned to Fort Hood, Texas thereafter, where he was released from active duty with an honorable characterization of service on 20 February 1970.   
A Veterans Administration (VA) letter to him of 5 March 1971 shows that he was awarded a 10 percent disability rating for allergic conjunctivitis. 

4.  The applicant's personnel qualification record, maintained by his Guard unit,  shows that he served in the Army Reserve from 1970 to 1973.  He enlisted in the Army National Guard for one year on 2 February 1974 and continued his service with the Guard until his discharge in 1991.

5.  On 19 November 1990 the applicant was ordered to active duty in support of Operation Desert Shield.  He served in Southwest Asia from 25 December 1990 to 10 May 1991.  Orders were published on 13 May 1991 releasing him from active duty on 3 June 1991.  Those orders, however, were subsequently revoked, and on 6 June 1991 he agreed to remain on active duty beyond his scheduled release date for the purpose of completing medical care, and if eligible, subsequent separation or retirement for physical disability. 

6.  On 17 May 1991 the applicant was notified that he was eligible to receive retired pay at age 60 (20 year letter).  

7.  Medical proceedings of 14 August 1991 show that the applicant had nearly continuous back pain.  The examining physician stated that he did not meet medical standards for retention in the Army, and recommended that his case be presented to a PEB.  

8.  On 18 September 1991 a PEB determined that the applicant was physically unfit for duty because of his mechanical back pain and recommended that he be separated with a 10 percent disability rating.  The applicant concurred on          26 September 1991.  On 3 December 1991 the proceedings were approved.  

9.  On 6 December 1991 the applicant was informed that the PEB proceedings had been approved, and advised him that because he had at least 20 years of satisfactory Federal service he would be eligible upon reaching age 60 to apply for retirement benefits.  He was also informed that he had the option of electing transfer to the Retired Reserve or discharge with entitlement to receive disability severance pay.  An election form was provided for that purpose.  The election form was not completed nor signed.  

10.  A PERSCOM message, dated 19 November 1991, directed that orders be issued discharging the applicant effective 5 December 1991 with a disability rating of 10 percent.  The 5 December 1991 date was lined through in pen and ink and the 19 December 1991 date substituted therein.

11.  The applicant's 19 December 1991 DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3). He had over 5 years of active service and over 19 years of inactive service.  He received severance pay in the amount of $29,118.60.  The applicant signed the DD Form 214.   

12.  On 6 January 1992 the Delaware Army National Guard published orders discharging the applicant from the Army National Guard and transferring him to the Army Reserve Control Group (Retired) effective 20 December 1991. 

13.  The applicant's personnel qualification record indicates that he was released from active duty on 19 December 1991 and returned to the Delaware Army National Guard per a First United States Army order dated on 4 December 1991. That record also shows that he was discharged on 20 December 1991.   

14.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability, and states in pertinent part that based upon the final decision of the Army Physical Disability Agency, PERSCOM will issued orders separating a Soldier for physical disability with severance pay or transfer a Soldier who has completed at least 20 qualifying years of Reserve service to the Inactive Reserve on the Soldier's request. 

15.  Paragraph 8-9 of the above regulation states that a Soldier who is unfit because of physical disability may forfeit severance pay; be transferred to the Retired Reserve, and receive nondisability retired pay at age 60, if at least        20 qualifying years of service for retirement have been completed and transfer to the Retied Reserve is requested.  All rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay cannot be repaid for the purposes of receiving retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted, as is the fact that the above-mentioned election form was not completed nor signed; however, the applicant, in his request, implies that he did make a decision - discharge with severance pay.  The DD Form 214 shows that the applicant was discharged with severance pay.  He signed that form.            

2.  The applicant was a member of the Delaware Army National Guard.  The     DD Form 214 discharging him was more than likely an erroneous action, corrected by transferring him back to his National Guard for discharge by that agency.  The Delaware Army National Guard compounded that error, however, by issuing orders transferring him to the Retired Reserve.  An entry on his personnel qualification record does show that he was honorably discharged.  In view of his request, it is more than probable that he was discharged, and that he did receive severance pay.  The applicant does not dispute this.   
 
3.  Consequently, and notwithstanding the errors noted above, the applicant was properly discharged, with severance pay at his own request.  The applicant received what he asked for, and his discharge was effected in accordance with the applicable regulation in effect at that time.   

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 December 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on    18 December 1994.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SK ___  ___JS  __  __WP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		_____Stanley Kelley_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003093058	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040504	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.