RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 JULY 2005
      DOCKET NUMBER:  AR20040008168


      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. Ted Kanamine                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Lawrence Foster               |     |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 that a new separation document be issued showing
that he has been permanently retired.

2.  The applicant states that his 1990 separation document is now incorrect
because he “came off temporary to permanent” retirement in March 1992.

3.  The applicant provides a copy of his 1990 separation document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 March 1992, the date his name was removed from the
TDRL.  The application submitted in this case is dated 21 September 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 limitations 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.  The applicant entered active duty in June 1977 and by 1985 had attained
the rank of staff sergeant, pay grade E-6.  He had performed duties as an
infantryman in a variety of locations including Korea, Germany, and Hawaii.

4.  In March 1990 a Physical Evaluation Board (PEB) concluded that the
applicant’s bilateral bunions, chronic left knee pain, and intermittent low
back pain, rendered him unfit.  However, his foot condition was such that a
permanent degree of severity could not be determined.  The PEB recommended
that the applicant be discharged and his name placed on the TDRL (Temporary
Disability Retired List) with a disability rating of 30 percent.

5.  On 2 May 1990 the applicant was discharged by reason of physical
disability and his name was placed on the TDRL the following day.  A
separation document was issued.



6.  In accordance with the provisions of Army Regulation 635-5-1, item 23
(type of separation) on his Department of the Army Form 214 (Certificate of
Release or discharge from active duty) reflected “retirement” and item 28
(narrative reason for separation), reflected “physical 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.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.
Only individuals whose final disability rating is 30 percent or higher are
considered permanently retired by reason of physical disability.

8.  In March 1992, after the applicant disagreed with the findings of an
informal PEB, a formal PEB concluded that for adjudication purposes his
disability was considered to have stabilized at the degree of severity,
which permitted a permanent rating.  The PEB concluded that the applicant’s
medical conditions render him unfit and warranted a combined disability
rating of 30 percent.

9.  On 25 March 1992 the applicant’s name was removed from the TDRL.
Orders issued on 25 March 1992 by the United States Total Army Personnel
Command confirmed that the applicant’s name was removed from the TDRL and
that he was permanently retired.  A new separation document was not issued.

10.  Army Regulation 635-5 provides, 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 applicant’s 1990 separation document is correct.

2.  The entries in item 23 and 28 on the applicant’s separation document
are correct and the fact that he was subsequently permanently retired is
not a basis to change the reason for his 1990 discharge from active duty.
The orders issued in March 1992 are sufficient to confirm his current
status.  A correction to item 23 and item 28 on his 1990 separation are not
required and create no error or injustice.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 March 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
1 May 1992.  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

__TK ___  __JM____  __LF  ___  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.




                                  ____ _Ted Kanamine________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008168                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050719                                |
|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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