IN THE CASE OF: BOARD DATE: 13 January 2015 DOCKET NUMBER: AR20140006491 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the following retroactive to 2004: * restoration of his retiree status and correction of this status to show his grade as O-2E with 21 years and 7 months of service * back pay and allowances * Combat-Related Special Compensation (CRSC) 2. The applicant states: * he has received a 70-percent disability rating from the Department of Veterans Affairs (VA) and he has over 20 years of service * he left the service in the rank of private first class (PFC) on the Temporary Disability Retired List (TDRL) * he later enlisted in the U.S. Army Reserve and Army National Guard (ARNG) and he was deployed under Title 10, U.S. Code, several times * no further service, injuries, or awards were entered in the retirement system upon his separation – he was left with the rank of PFC with just over 1 year of service * he has been working unsuccessfully with his prior unit and the VA to amend documents in his records 3. The applicant provides: * DD Form 2 (U.S. Uniformed Services Identification Card – Retired) * New Hampshire driver's license * military personnel record extracts CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was approved for CRSC on 6 June 2014; therefore, this issue will not be further discussed in this Record of Proceedings. 3. On 25 July 1984, the applicant enlisted in the Regular Army and he was honorably retired in the rank of PFC on 17 October 1985 by reason of temporary disability. 4. U.S. Army Physical Disability Agency records show the applicant was placed on the TDRL effective 18 October 1985 and he was removed from the TDRL on 20 November 1989. 5. On 8 August 1998, the applicant enlisted in the New Hampshire ARNG for a 6-year period. 6. On 10 July 1999, the applicant enrolled in Officer Candidate School as a cadet. 7. On 30 August 2000, the applicant was appointed as a second lieutenant in the ARNG. On 13 January 2002, the applicant resigned his commission. 8. On 19 June 2003, the applicant enlisted in the Vermont ARNG in the rank of PFC. 9. On 20 January 2004, he was ordered to active duty in support of Operation Iraqi Freedom. 10. On 1 September 2004, the applicant was promoted to the rank/grade of specialist (SPC)/E-4. 11. On 20 November 2003, his enlistment contract was amended to show his rank/grade as sergeant/E-5. 12. On 4 June 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for maltreatment of another Soldier and communicating a threat. His nonjudicial punishment included reduction to the rank/grade of SPC/E-4. 13. On 8 July 2006, he was honorably released from active duty and placed in a medical retention status. 14. On 22 January 2008, the applicant was honorably discharged from the ARNG in the rank/grade of SPC/E-4. His National Guard Bureau (NGB) Form 22 for this period shows he was discharged without personal notice. Item 10d (Total Service for Pay) shows he was credited with 22 years and 23 days. 15. His NGB Form 23A (ARNG Current Annual Statement), dated 29 April 2008, shows: * his highest grade held was O-2 * he had 3,441 total points for retired pay and 12 years and 8 days of creditable service for retired pay * he required 8 years of creditable service to reach 20 qualifying years 16. On 12 December 2011, the VA increased the applicant's disability ratings as follows: * post-traumatic stress disorder with major depressive disorder from 10 percent to 50 percent * left shoulder impingement and degenerative joint disease from 0 percent to 20 percent 17. The applicant provided a DD Form 2 that shows his name with the rank/grade of 2LT/O-1 issued on 3 August 2012 with an expiration date of 28 February 2031. He also provided a copy of his New Hampshire driver's license and extracts of his military records. 18. The available records are void of and the applicant failed to provide any evidence showing he was permanently retired with or without a disability. 19. The available records are void of and the applicant failed to provide evidence showing he received a third and final consideration of his CRSC case. 20. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his or her office, grade, rank, or rating. a. The mere presence of impairment does not, in itself, justify a finding of unfitness because of physical disability. b. The medical treatment facility commander with the primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to a Medical Evaluation Board. Those members who do not meet medical retention standards are referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. c. Paragraph 3-2b(1) states that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption may be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit. 21. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 22. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 23. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Furthermore, unlike the U.S. Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 24. CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states that eligible members are those retirees who have 20 years of service for retired pay computation – or 20 years of service creditable for Reserve retired pay at age 60 – and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10-percent disabling. CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat related. Title 31, U.S. Code, section 3702(b), states CRSC is subject to a 6-year statute of limitations. CRSC applicants are entitled to submit up to three appeals before a final determination is granted. DISCUSSION AND CONCLUSIONS: 1. Records show the applicant was placed on the TDRL on 18 October 1985 and he was removed from the TDRL on 20 November 1989. 2. Although the applicant was granted CRSC and he provided a copy of his retiree identification card, his records are void of and he failed to provide any evidence showing he was subsequently permanently retired with or without a disability after 20 November 1989. 3. In view of the above, there is an insufficient evidentiary basis to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140006491 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140006491 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1