RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 SEPTEMBER 2005
      DOCKET NUMBER:  AR20050000694


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. Leonard Hassell               |     |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 a correction of his total time of military
service.

2.  The applicant states that he was placed on the temporary disability
retired list (TDRL) on 10 March 1976 with a 60 percent disability rating.
He reported for three physical examinations over the next two years before
being placed on permanent retirement on 1 January 1979, a total of 2 years,
9 months, and       24 days.  That time should be reflected in his records
as he was subject to recall. It shows on his records as “dead time” from
the time he was placed on the TDRL until his actual retirement date.  His
expiration of term of service (ETS) was well past his projected retirement
date.

3.  The applicant provides a copy of his DD Form 214 (Report of
Separation), a copy of his Certificate of Retirement, and a copy of a 10
March 1967 letter notifying him that he had been placed on the TDRL.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 January 1979.  The application submitted in this case
is dated        8 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 served in the Regular Air Force from 30 January 1957 to
        1 February 1961.  He also had 1 year, 11 months, and 28 days of
inactive service.

4.  The applicant enlisted in the Army for 3 years on 20 March 1963 and
continued on active duty until his discharge on 8 March 1976 and transfer
to the TDRL the following day, 9 March 1976.  His last reenlistment period
was for        6 years on 10 October 1972.

5.  The applicant served in Vietnam for 10 months in 1970-1971.  He was
seriously wounded in action on 31 March 1971 and eventually medically
evacuated to Martin Army Hospital at Fort Benning, Georgia in May 1971.  In
September 1971 the applicant was assigned to Fort Jackson, South Carolina,
thence on temporary duty to Fort Stewart, Georgia, and in September 1972
back to Fort Jackson.

6.  On 26 January 1976 a Medical Evaluation Board (MEB) determined that he
was medically unfit for service because of his numerous medical conditions
and recommended that he be referred to a Physical Evaluation Board (PEB).
The applicant concurred, indicating that he did not desire to continue on
active duty.
7.  On 2 February 1976 a PEB determined that the applicant was physically
unfit for continued military service because of degenerative disease of
both knees and other ratable conditions.  The PEB stated that the
applicant’s condition was not sufficiently stable to warrant permanent
disposition and recommended placement on the TDRL with reexamination during
July 1977.  The PEB recommended a    60 percent disability rating.  The
applicant concurred.

8.  The applicant was discharged on 8 March 1976 and placed on the TDRL on
 9 March 1976.  He had a total of 16 years, 11 months, and 16 days of
active service, and 1 year, 11 months, and 28 days of inactive service.

9.  In August 1977 the applicant underwent a TDRL physical examination.  On
   4 September 1977 a PEB stated that because of anticipated scheduled
surgery on 7 November 1977, the PEB recommended continuation on the TDRL
until after that surgery and appropriate convalescence.  The PEB
recommended reevaluation during September 1978.

10.  On 21 September 1978 the applicant underwent another TDRL physical
examination.  As a result of that examination, a PEB on 6 November 1978
determined that the applicant was physically unfit for military service and
recommended that he be permanently retired with a 60 percent disability
rating.  The Army Physical Disability Agency approved the recommendation on
              5 December 1978.  On 31 December 1978 the applicant was
removed from the TDRL and permanently retired on 1 January 1979.

11.  On 20 November 2003 the Army Physical Disability Agency notified the
applicant that his application for Combat-Related Special Compensation
(CRSC) was disapproved because he did not have 20 years of active service
or at least 7200 points for non-regular service.  He appealed to this Board
for relief, and on 10 February 2004 he was informed that he did not meet
the criteria for CRSC and relief could not be granted.

12.  Army Regulation 635-40 provides that an individual may be placed in a
TDRL status for a maximum period of 5 years when it is determined that the
individual is qualified for disability retirement under Title 10, United
States Code, section 1201, but for the fact that his or her disability is
not stable and the individual may recover and be fit for duty, or the
degree of severity may increase or decrease so as to warrant a change in
the disability rating.  A Soldier on the TDRL must undergo a periodic
medical examination and PEB evaluation at least once every 18 months to
decide whether a change has occurred in the disability for which the
Soldier was temporarily retired.  Medical examiners will recommend removal
of the Soldier’s name from the TDRL as soon as the Soldier’s condition
permits.  A Soldier will be removed from the TDRL and permanently retired
if the Soldier is unfit because of the disability from which the Soldier
was placed on the TDRL; and the disability has stabilized at 30 percent or
more.  If a former Regular Army Soldier is determined physically fit to
perform his duties, subject to his consent, he will be reenlisted in his
regular component in the regular grade held on the day before the date
placed on the TDRL, or in the next higher grade.  If the Soldier does not
consent to reenlistment, TDRL status and disability pay will be ended as
soon as possible.

13.  Title 10, United States Code, Section 101, defines active duty as full-
time duty in the active military service of the United States, and active
service as service on active duty or full-time National Guard duty.

14.  Army Regulation 635-5 provides for the preparation of the DD Form 214
for Soldiers on retirement, discharge, release from active duty service, or
control of the active Army.  It states that a DD Form 214 will be prepared
for active Army Soldiers on termination of active duty by reason of
administrative separation, physical disability separation, or punitive
discharge.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant’s contention, he was not subject to
recall to active service while on the TDRL.  The applicant could only
return to active service based on a recommendation by a PEB that he was
physically fit for retention and subsequent approval of that recommendation
by the Army Physical Disability Agency.

2.  Nevertheless, the applicant was discharged from the Army on 8 March
1976 and placed on the TDRL the following day.  He had no active service
after that date and the period of time that he spent on the TDRL is not
active service.

3.  The applicant’s total service, both active and inactive, is as
indicated on his     8 March 1976 DD Form 214.  The applicant’s request to
correct his service time to reflect his time on the TDRL is not warranted.


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 January 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         31 December 1981.  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

___LE___  __PS ___  __LH  ___  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.




                                  ______Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000694                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050929                                |
|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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