RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 JULY 2005
      DOCKET NUMBER:  AR20040009097


      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, in effect, that her 1985 separation document be
corrected.

2.  The applicant states that her separation document indicates that she
was “retired” but states that she is not receiving retirement pay.

3.  The applicant provides no evidence in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 December 1985.  The application submitted in this case
is dated
7 October 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.  Records available to the Board indicate that the applicant entered
active duty on 15 October 1982.

4.  In November 1984 she sustained an injury to her right knee while
working in the motor pool, which ultimately resulted in her being referred
for disability processing.

5.  On 6 November 1985 orders, using format 610, were published relieving
the applicant “from assignment and duty because of physical disability
incurred while entitled to basic pay and under conditions which permit her
placement on the Temporary Disability Retired List.”  Her “effective date
of retirement” was
4 December 1985 and her name was “placed on [the] retired list” effective
5 December 1985 in accordance with the provisions of paragraph 4-24e(2),
Army Regulation 635-40, which established the policies and provisions for
the separation/retirement of soldiers, based on physical disability.

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

7.  By 1987 a Physical Evaluation Board concluded that the applicant’s
condition had stabilized sufficiently for rating purposes and recommended
the applicant’s name be removed from the TDRL.  On 9 June 1987 the
applicant’s name was removed from the TDRL with a final rating of 20
percent and entitlement to severance pay.

8.  Army Regulation 635-5, then in effect, stated that item 23 on the DD
Form 214 would reflect “retirement” when orders format 610 was utilized to
confirm an individual’s release from active duty.

9.  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 applicant’s 1985 separation document is correct.

2.  The entry in item 23 on the applicant’s separation document is correct
and the fact that she was subsequently granted severance pay is not a basis
to change her 1985 document.  The orders issued in 1987 removing her name
from the TDRL are sufficient to confirm her current status.  A correction
to item 23 on her 1985 separation document is not required and creates 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 4 December 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
3 December 1988.  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                 |AR20040009097                           |
|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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