IN THE CASE OF: BOARD DATE: 29 March 2011 DOCKET NUMBER: AR20100021741 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 date of his disability retirement be changed from 7 August 1999 to 24 June 2000. 2. The applicant states, in effect, if his discharge had been 1 day later he would have had 20 years in the Army for pay purposes. He further states the following: a. If he had been allowed to continue working in the job he held while his board packet moved through the process, he could have provided quality service until he reached 20 years of active duty. b. The Department of Veterans Affairs (VA) has rated him 100 percent permanently disabled, but he cannot receive concurrent receipt due to his discharge date. He spoke with the Defense Finance and Accounting Service and was told he could appeal to the Army Board for Correction of Military Records (ABCMR) for a change in his discharge date to 24 June 2000 which would bring him up to 20 years of active duty and make him eligible for concurrent receipt. With the current laws in place, he receives no portion of his Army pension due to the VA offset. He has been told by a pulmonologist he needs to go on disability and if he does he will not be able to make ends meet. c. Hospital personnel acted improperly after his surgery by forgetting to plug his chest tubes into the vacuum causing his lungs to collapse and extending his stay in the intensive care unit; otherwise, he could have worked until his normal retirement. He had been diagnosed with constant pneumonia for several years prior to the discovery of carcinoid tumors and even 2-3 months prior to the discovery he had visited the Madigan Army Medical Center emergency room due to hypoxia, only to be told his chest was clear. His current lung capacity is in the 20's and 30's depending on the weather and he has been told he is a candidate for a transplant. The cancer was a type caused by exposure to asbestos and exhaust fumes and it has now resolved into asthma. d. The bottom line is that concurrent receipt would allow him to improve his quality of life to the point where he could spend time with his family. This request is not unreasonable due to the sequence of events leading to his discharge. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Service) and a self-authored statement. 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 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's records show he enlisted in the Regular Army on 25 June 1980 and held military occupational specialty 98G (Voice Interceptor). 3. The specific facts and circumstances surrounding separation are not available for review with this case. However, his DD Form 214 shows he was honorably retired on 7 August 1999 in the rank/grade of staff sergeant/E-6 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), by reason of permanent disability and placed on the Retired List. He completed 19 years, 1 month, and 13 days of creditable active service. 4. In a self-authored statement, the applicant states he has no other documentation. His medical records are at the Columbia, SC, VA office. They show a distinct pattern of pneumonias, as well as the emergency room visits he referred to, but he does not have copies of any of the paperwork. The failure to follow protocol is documented in his records in the post-operative records at Madigan Army Medical Center, but he does not have a copy. 5. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. A medical evaluation board refers a member to a physical evaluation board (PEB) when, because of medical impairment, he or she may be unable to perform his or her duties. 6. Army Regulation 635-40, paragraph 3-6, states providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission. The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis. The interest of both the Army and the Soldier must be considered. A Soldier may not be retained or separated solely to increase retirement or separation benefits. Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement. 7. 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 the receipt of VA compensation. Concurrent Retirement and Disability Payments applies to retirees with 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: 1. The applicant's record is void of the specific facts and circumstances surrounding his permanent disability retirement. It appears he was processed through the PDES and referred to a PEB that found he was be unable to perform his duties and recommended him for permanent disability retirement. 2. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the PDES process and his subsequent permanent disability retirement. 3. A law providing concurrent receipt of military retired pay and VA disability compensation passed 5 years after he retired. However, the law does not apply to disability retirees with less than 20 years of service. Regrettably, the passage of a law 5 years after the applicant retired for physical disability 10 months and 17 days short of completing 20 years of active duty, with his presumed concurrence of the findings of a PEB, is insufficient reason to grant the relief requested. 4. The ABCMR does not grant requests for correction of records solely for the purpose of making the applicant eligible for veterans' or other benefits. 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) AR20100021741 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100021741 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1