RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         02 DECEMBER 2004
      DOCKET NUMBER:  AR2004105951


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Laverne Berry                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her 1997 Department of Defense
(DD) Form 214 (Certificate of Release or Discharge from Active Duty) be
corrected to show the date she was released from the TDRL (Temporary
Disability Retired List) and to show that she was medically discharged.

2.  The applicant states, in effect, that she was placed on the TDRL in
December 1997 and released from the TDRL in May 2000.  She states that when
she was originally placed on the TDRL she was receiving chemotherapy and
was extremely depressed.  She maintains that she should have been medically
discharged on 1 December 1997.

3.  She states that when her separation document was processed she was an
inpatient at Brooke Army Medical Center.  She states she currently has a
disability rating of 80 percent from the Department of Veterans Affairs and
is employed by that agency.  She states that the error “only gives time for
combat time (6 months).”

4.  The applicant provides a copy of her separation document and a copy of
the orders removing her from the TDRL.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 May 2000, the date her name was removed from the TDRL.
 The application submitted in this case is dated 5 March 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty as an enlisted Soldier on 7 November 1989.



4.  On 5 December 1996 she underwent an informal Physical Evaluation Board
(PEB) which determined that her Burkitt’s lymphoma with positive bone
marrow biopsy with retroperitoneal and mediastinal masses, in addition to
her receiving high dose chemotherapy, prevented reasonable performance of
duties required by grade and military service.  However, the PEB also noted
that the applicant’s condition was not sufficiently stable for final
adjudication and recommended that the applicant’s name be placed on the
TDRL with a disability rating of 100 percent.  The board recommended that
she be reevaluated in 1998.  The applicant, by her signature on the PEB
form on 5 December 1998, indicated that she concurred with the findings and
recommendation of the PEB and waived her right to a formal hearing.

5.  On 12 January 1997 the applicant was honorably discharged and her name
placed on the TDRL the following day.  The applicant was not available to
sign her separation document, however, she did acknowledge being counseled
regarding her separation action by the Alternate Physical Evaluation Board
Liaison Officer at Fort Sam Houston, Texas.

6.  In accordance with the provisions of Army Regulation 635-5, item 23
(type of separation) on her DD Form 214 reflected “retirement” and item 28
(narrative reason for separation), in accordance with Army Regulation 635-5-
1, then in effect, reflected “disability-temporary.”

7.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
maximum period of 5 years which is allowed by Title 10, United States Code,
section 1210) when it is determined that the individual's physical
disability is not stable and he or she may recover and be fit for duty, or
the individual's disability is not stable and the degree of severity may
change within the next 5 years so as to change the disability rating.

8.  In June 1998 the applicant underwent another PEB following her TDRL
examination.  The PEB noted that she was doing well but was unable to
return to duty.  It concluded that her condition was still not sufficiently
stabilized to permit final adjudication and recommended retention on the
TDRL for an additional period.

9.  In April 2000, following another TDRL evaluation, an informal PEB found
that the applicant showed ”no evidence of residual tumor but had developed
right sided mild sciatic neuritis secondary due to multiple intrathecal
Methotrexate injections.”  It noted that she had some reduction in stamina
but was working full time.  The PEB concluded that her condition had not
improved to the extent that she was fit for duty but was sufficiently
stabilized for a permanent rating.  The PEB concluded that her condition
warranted a 10 percent disability rating and on 10 May 2000 her name was
removed from the TDRL.  Orders issued on 10 May 2000 by the United States
Physical Disability Agency confirmed that the applicant’s name was removed
from the TDRL.

10.  Army Regulation 635-5 also states, in pertinent part, that a
separation report (DD Form 214) will be prepared at the conclusion of a
period of active Federal service.  An individual whose name is placed on
the TDRL is considered to have been released from active Federal service
and as such is issued a DD Form 214. While on the TDRL individuals do not
accumulate active Federal service and as such when their names are removed
from the TDRL a new DD Form 214 is not issued, as they are not in an
“active” status.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant, in spite of not being available
to sign her 1997 separation document, was involved in her disability
processing.  Although the applicant’s name may have been placed on the TDRL
in 1997, the applicant was in fact “discharged” from the Army, which is
why, when her name was removed from the TDRL that a new separation document
was not issued.

2.  The entry in item 23 on the applicant’s separation document is correct
and the fact that she was subsequently granted disability severance pay
vice being permanently retired is not a basis to change the reason for her
1997 discharge from active duty.  The orders issued in May 2000 are
sufficient to confirm her current status.  A correction to item 23 on her
1997 separation is not required and creates no error or injustice.

3.  While it is not entirely clear what the applicant means when she states
that “this error only gives time for combat time…” in her application, it
apparently stems from employment entitlements within the Department of
Veterans Affairs. Unfortunately, such a situation does not compel the Army
to change its records in order for an individual to meet eligibility
requirements for programs authorized by another government agency.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 May 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 May 2003.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___TO __  ___LB  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____ Raymond Wagner_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105951                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041202                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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