BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090013500 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change the date of his separation and the name and address of his nearest relative.

2.  The applicant states that he was separated on 6 February 2003 and placed on the Temporary Disability Retired List (TDRL).  He was removed from the TDRL on 4 August 2004.  He wants his date of separation changed to show the date of his removal from the TDRL so that he will receive full benefits from the Department of Veterans Affairs.  He also contends that the name of his nearest relative in item 19b of his DD Form 214 is wrong and should be changed.

3.  The applicant provides a copy of Orders D217-07, U.S. Army Physical Disability Agency, dated 4 August 2004, in support of his 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.  On 19 January 2000, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 31U (Signal Support Systems Specialist).

3.  On 6 February 2003, the applicant was separated from active duty and placed on the TDRL effective 7 February 2003.  He had attained the rank of specialist, pay grade E-4, and had completed 3 years and 18 days of creditable active duty service.

4.  Item 12b (Separation Date This Period) of the applicant's DD Form 214 shows 6 February 2003.  Item 19b (Nearest Relative) of this same form shows the name and address of an individual who has the same last name as the applicant.

5.  Orders D217-07, U.S. Army Physical Disability Agency, dated 4 August 2004, removed the applicant from the TDRL on 4 August 2004.  He was permanently retired with a disability rated at 30 percent effective 5 August 2004.

6.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.  It provides, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.  It provides that the entry in item 12b will be the Soldier's transition date.  The entry in item 19b will provide the name and address of a relative or close friend who will know his or her location and address.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the date of his removal from the TDRL as his separation date from active duty service.  He further contends that the name and address of in item 19b of his DD Form 214 should be changed.

2.  The DD Form 214 is a record of a Soldier's active duty service.  The time that the applicant spent on the TDRL was not active duty service and may not be shown as such on his DD Form 214.

3.  It has been almost 7 years since the applicant's separation.  The applicant has not provided any reason or justification for needing the name and address as entered in item 19b changed at this late date.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20090013500



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ABCMR Record of Proceedings (cont)                                         AR20090013500



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