IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090014855 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by deleting the entry "DISABILITY SEVERANCE PAY - $14,937.00."

2.  The applicant states he could not have received severance pay because of his medical discharge (i.e., medical retirement).

3.  The applicant provides two leave and earnings statements and his DD Form 214.

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's military records show that he enlisted in the Regular Army on 23 April 1993 with prior active service.  He served as a light wheeled vehicle mechanic and was promoted to pay grade E-6.

3.  On 13 August 1999, the applicant was retired and placed on the Temporary Disability Retired List (TDRL).  The DD Form 214 he was issued, Item 18, Remarks, states "DISABILITY SEVERANCE PAY - $14,937.00."

4.  In the processing of this case the Defense Finance and Accounting Service (DFAS) verified that the applicant did not receive severance pay.

5.  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 rated at least 30 percent.

6.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

7.  Title 10, U.S. Code, section 1202, provides for the placement of a member on the TDRL when the disability has not stabilized to the degree that it may be properly rated.  Placement on the TDRL requires that the member meet the criteria of Title 10, U.S. Code, section 1201.  

DISCUSSION AND CONCLUSIONS:

Soldiers transferred to the TDRL are not given severance pay.  DFAS has confirmed the applicant did not receive severance pay.  Therefore, the entry "DISABILITY SEVERANCE PAY - $14,937.00" is in error and should be deleted from the applicant's DD Form 214.

BOARD VOTE:

___X____  ____X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the DD Form 214 of the individual concerned be corrected by deleting the entry "DISABILITY SEVERANCE PAY - $14,937.00" from Item 18.




      _______ _  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)                                         AR20090014855



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ABCMR Record of Proceedings (cont)                                         AR20090014855



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