MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            1 August 2002                  
	DOCKET NUMBER:   AR2001063275

	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	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 the 18 December 1996 decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number 
AC94-08328 be reversed by changing his current Army disability retirement to “regular retirement” [retirement for years of service].

APPLICANT STATES:  That he wants his current retirement changed back to regular retirement because he did not want his records changed from regular retirement to medical retirement.  He contends he was not advised of the ABCMR’s decision and was not given a copy of the ABCMR’s “recommendation.”

In support of his application, the applicant provided a two-page statement which provides the background for his current request.  The applicant wrote that he filed an application with the ABCMR on 15 June 1993 because he just wanted to let the ABCMR know that he did not get a chance to go before a “medical board” [correctly known as a medical evaluation board (MEB)].  He also stated that he served 20 plus years and retired honorably, not under medical conditions and that is the way he wants it to be now.  He also contends he was not provided a copy of the ABCMR’s Proceedings in his case and he did not find out the Board findings until August 2001 when he contacted the Defense Finance and Accounting Service (DFAS) in Cleveland to inquire about another problem.  He contends that officials at DFAS advised he had been medically retired as a result of a change to his records in 1997.  The applicant again contends that he never received anything saying his records were going before any “board” and “now I am not entitled to new benefits” that have been approved by Congress because of the reason for retirement.  The applicant concludes his letter as follows:

	“The bottom line is I don’t or didn’t want my retirement change from regular retirement to medical retirement.  I would like my retirement change back to regular retirement and I would like a copy of the discussion and why it take so long to make a discussion like this.  It is admin, just paper work so this shouldn’t take no more than 90 day I hope.  If you need more info please contact me at my home phone anytime.”

The Defense Finance and Accounting Service also provided a copy of a letter to the applicant, dated 25 July 2002, which explains to the applicant that he was not entitled to special compensation for severely disabled retirees during the period 1999 through 2001 because he was retired under “a disability law.”

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

The applicant was honorably separated from active duty on 30 November 1992 and transferred to the U.S. Army Reserve Control Group (Retired) for retirement by reason of length of service under the provisions of chapter 12 of Army Regulation 635-200 (Enlisted Personnel).  
Records show that, on 15 June 1993, the applicant signed a DD Form 149 (Application for Correction of Military Records) wherein he stated in item 
12 (I believe the record to be in error or unjust in the following particulars):

	“I was not given the chance to appear before a medical board, to see if I had a medical problem to get Medical Discharge.  Since I retired I have two back operation.  I haven’t been able to work and I have two screw in my back now.”

Department of Veterans Affairs records show that the applicant changed his address from Orlando, Florida, to Fayetteville, North Carolina, between 20 March 1995 and 28 November 1995.  The Orlando, Florida, address is the same address on the applicant’s 15 June 1993 application to the ABCMR.  There is no evidence that the applicant ever notified the ABCMR of his change of address.

On 18 December 1996, a three-member panel of the ABCMR [also referred to as the “Board”] considered the applicant’s case.  That Board reviewed an advisory opinion from The Surgeon General of the Army which stated that the applicant should have been referred to a medical evaluation board (MEB), and, had that been accomplished, then he would have been found physically unfit and rated 20 percent disabled in accordance with Code 5293 of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Appendix B.  

The Proceedings of the ABCMR show that, after due consideration of all the evidence in the applicant’s case, the Board voted unanimously to recommend that :

	a.  the action separating him from active duty on 30 November 1992 was void and of no force or effect;

	b.  that the applicant be provided the opportunity to elect the computation of his retired pay under the applicable pay formula that is most favorable to him; and

	c.  that his records be corrected to show he was separated on 30 November 1992 and on the following day retired in the highest grade satisfactorily held under the provisions of Title 10, United States Code, Section 1201(A) with a 20 percent disability rating.

Records show that, on 16 January 1997, the Acting Director of the Army Board for Correction of Military Records approved the recommendation of the Board.  

Records further show that, on 3 February 1998, officials of the Army Review Boards Agency in St. Louis, Missouri, made four corrections to the applicant’s DD Form 214 by publishing a DD Form 215 (Correction to DD Form 214).  Among these corrections, this DD Form 215 changed item 25 (Separation Authority) to show that the applicant was separated under the provisions of Army Regulation 635-40, paragraph 4-24E(1) instead of Army Regulation 635-200.  The DD Form 215 also changed item 28 (Narrative Reason for Separation) to “PHYSICAL DISABILITY–PERMANENT” instead of “FOR LENGTH OF SERVICE.”

Review of Title 10, United States Code, Section 1413 reveals that additional monetary compensation has been made available to certain severely disabled veterans.  The applicant contends that he is not entitled to retroactive payment of theses benefits back to October 1999 because his discharge is based on retirement with permanent disability.  

The 25 July 2002 letter to the applicant from the Defense Finance and Accounting Service confirms that the applicant was not entitled to or paid special compensation for severely disabled retirees for the period October 1999 to October 2001 because he was retired under Title 10, United States Code, Section 1201, for disability.

Army Regulation 15-185 (Army Board for Correction of Military Records) implements Title 10, United States Code, Section 1552, by establishing the procedures for making application and the consideration of applications for the correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records.  

Title 10, United States Code, Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Section 658 of Public Law 106-65 provides that each Secretary concerned shall pay to each eligible disabled uniformed service retiree the monthly amount of $300 for total disability, $200 for 90 percent disability and $100 for 80 or 70 percent disability effective 1 October 1999.  An eligible disabled uniformed retiree is defined in law as a member of the uniformed services in a retired status (other than a member who is retired under Chapter 61 for physical disability) who:  (1) completed at least 20 years of service in the uniformed services that are creditable for purposes of computing the amount of retired pay to which the member is entitled; and (2) has a qualifying service-connected disability.  The law also defines qualifying service-connected disability as a condition which was incurred or aggravated in the performance of duty as a member of a uniformed service and is rated not less that 70 percent disabling.  The law requires that the Secretary concerned must make a determination of service connected disability as of the date on which the member is retired from the uniformed services.  The Secretary of Veterans Affairs is authorized to make a determination of service connected disability within four years following the date on which the member is retired from the uniformed services.  Public Law 107-136 increased the amount of the monthly compensation to severely disabled uniformed service retirees beginning in February 2002.

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.  The Board considered the applicant’s request to reverse the decision of the ABCMR in the applicant’s case considered as Docket Number AC94-08328 on 18 December 1996.

2.  The Board noted the applicant’s contention that he did not request that his retirement by reason of years of service be changed to retirement based on permanent disability.  However, contrary to his contention, the Board found that the DD Form 149 signed by him on 15 June 1993 clearly indicates he believed that an error or injustice existed at the time of his separation for retirement because he had not been afforded a MEB “to get Medical Discharge.”  

3.  The Board also noted that competent authority determined that had the applicant been properly processed for disability, then he would have been found physically unfit and rated 20 percent disabled in accordance with Code 5293 of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Appendix B.

4.  The Board further noted that the applicant’s records were properly amended by the ABCMR to correct the error caused by failure to process him for disability and that the applicant was offered the opportunity to elect computation of retired pay under the formula most favorable to him.

5.  Based on the foregoing this Board concluded that the decisions of the ABCMR in Docket Number AC94-08328 on 18 December 1996 were consistent with the applicant’s request for correction of his records and were advantageous to him at that time.

6.  The Board noted the applicant’s contention that he had not been notified of the ABCMR’s decision in his case.  The Board determined that the applicant was in all probability not notified of the ABCMR’s 18 December 1996 decision because he failed to notify the ABCMR of his change of address.

7.  Based on all of the foregoing, this Board determined that the ABCMR in Docket Number AC94-08328 on 18 December 1996 properly corrected the applicant’s discharge based on his physical condition at the time of his separation which rendered him disabled as a result of service in the Army.  
8.  Additionally this Board has determined that it not appropriate to overturn the previous decision of the ABCMR in Docket Number AC94-08328 on 18 December 1996 in the absence of evidence which clearly and convincingly shows that the previous decision was contrary to fact or otherwise in error.  

9.  Finally, this Board has determined that it not appropriate to overturn previous decisions of the ABCMR solely for the purpose of making retirees retroactively eligible for benefits which were authorized several years after their retirement.  In this matter, this Board noted that the Congress of the United States specifically acted to deny retroactive payment of the special compensation for severely disabled retirees who were separated for disability reasons and the ABCMR should not circumvent that law by changing records which are already correct.

10.  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 either requirement.

11.  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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2001063275	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020801	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR. CHUN	
ISSUES         1.	110.0300.0000	
2.		
3.		
4.		
5.		
6.