IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100000553 


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, in effect, Concurrent Retirement and Disability Payments (CRDP).

2.  The applicant states:

* she believes she is eligible for some retired pay
* her condition requires that she use a fiduciary 
* she requests that the Board review her Permanent Disability Retired List (PDRL) status and current 100-percent Department of Veterans Affairs (VA) rating for her condition

3.  The applicant provides page 1 of a VA Rating Decision, dated 10 July 2009, in support of her application.

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 enlisted in the Regular Army on 30 December 1997 for a period of 4 years.  She served as a chaplain assistant.  On 12 December 2000, she was honorably released from active duty and placed on the Temporary Disability Retired List (TDRL) the following day.  She completed 2 years, 11 months, and 13 days of creditable active service.

3.  On an unknown date, apparently the applicant was removed from the TDRL with a permanent disability rating. 

4.  In support of her claim, the applicant provided page 1 of a VA Rating Decision, dated 10 July 2009, which shows she was granted service-connected compensation for a schizoaffective disorder (10 percent from 13 December 2000, 70 percent from 7 April 2002, and 100 percent from 20 January 2004).

5.  The Fiscal Year 2004 National Defense Authorization Act provided for phased-in restoration of the retired pay deducted from the accounts of military retirees because of their receipt of VA compensation.  CRDP applies to all retirees with a VA-rated, service-connected disability of 50 percent or higher, but does not apply to disability retirees with less than 20 years of service.  The phased-in restoration began 1 January 2004.

DISCUSSION AND CONCLUSIONS:

Since the law does not apply to disability retirees with less than 20 years of service, regrettably there is no basis for granting the relief requested.

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 that 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)                                         AR20100000553



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ABCMR Record of Proceedings (cont)                                         AR20100000553



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