RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040011346


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 correction of his DD Form 214 (Report of
Separation from Active Duty), dated 9 August 1977, to show his total active
Federal service.

2.  The applicant states that he was placed on the temporary disability
retired list (TDRL) in 1977 and was informed by a judge advocate general
(JAG) officer that he would receive credit for 20 years of service.  He was
placed on the Retired List effective 1 June 1979 and was again informed by
JAG that his records would be changed.  He also states that his DD Form 214
has never been changed to reflect 20 years of service and his current DD
Form 214 is not correct.

3.  The applicant provides a copy of his DD Form 214, dated 9 August 1977,
a copy of a letter dated 23 May 1979, and a copy of orders dated 23 May
1979, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error, which
occurred on 31 May 1979, the date he was permanently retired by reason of
physical disability.  The application submitted in this case is dated
16 December 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's military records show he entered active duty (AD) on
19 December 1958.  He continued to serve through a series of continuous
reenlistments.  He was promoted to staff sergeant (SSG/E-6) on 19 June
1970.

4.  The applicant's medical records, medical evaluation board (MEB), and
physical evaluation board (PEB) are unavailable for review.

5.  On 9 August 1977, the applicant was placed on the TDRL with 40%
disability, in the rank of SSG.  He had completed 18 years, 7 months, and
21 days of active Federal service.

6.  He was removed from the TDRL, effective 31 May 1979, 1 year, 5 months,
and 13 days later, and was placed on the Retired List by reason of
permanent physical disability.

7.  Army Regulation 635-5 serves as the authority for the preparation and
issuance of the DD Form 214.  It states, in pertinent part, that a DD Form
214
will be issued to each individual discharged, retired or placed on the
Temporary Disability Retired List (TDRL).  It further states that a DD Form
214 will not be issued to personnel who are being removed from the TDRL.

8.  Department of Defense Financial Management Regulation, Volume 7A,
Chapter 1, Paragraph 010101D2 pertains to service on a Retired List.  It
states that time spent on the TDRL is creditable service for pay purposes,
only if the Soldier returned to AD.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was placed on the TDRL, effective
10 August 1977, with 18 years, 7 months, and 21 days of active Federal
service
He was removed from the TDRL on 31 May 1979, 1 year, 5 months, and 13 days
later, and was placed on the Retired List by reason of permanent physical
disability.

2.  According to applicable regulation, the applicant's time spent while
assigned to the TDRL was correctly used in computing his retired pay.  Time
is only creditable if the applicant returned to AD  Therefore, his total
active Federal service of 18 years, 7 months, and 21 days, time spent on
active duty is correct.  There is no basis to change his DD Form 214, dated
9 August 1977, to reflect 20 years of service.

3.  The applicant contends that he was informed by a JAG officer, at the
time he was placed on the TDRL and on the Retired List, on two occasions
that he would receive credit for 20 years of service.  There is no
evidence, and the applicant has provided no evidence, to support his
contentions.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 May 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 May 1982.  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

________  ________  ________  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.




                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011346                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19790531                                |
|DISCHARGE AUTHORITY     |AR . 635-40                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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