RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         26 October 2005
      DOCKET NUMBER:  AR20050002404


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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 Item 9d (Effective Date) of his
separation document (DD Form 214) be corrected to show his discharge date
as 30 April 1981.

2.  The applicant states, in effect, that the 5 July 1979 effective date
listed on his DD Form 214 is in error.  He claims the correct date is 30
April 1981.  He also states that he was attached to Walter Reed Army
Medical Center WRAMC, Washington D.C. on orders on 1 September 1980 and 20
April 1981.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 20 April 1981.  The application submitted in this case is
dated
3 February 2005.

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 record shows he enlisted into the Regular Army on 7
February 1978.  He was trained in, awarded, and served in military
occupational specialty (MOS) 71L (Administrative Specialist).

4.  On 27 April 1979, a Medical Evaluation Board (MEB) determined the
applicant suffered from a depressive neurosis, moderate condition.  On 5
June 1979, an addendum to the MEB proceeding amended the diagnosis to
“depressive neurosis, severe”.  The MEB referred the applicant to a
Physical Evaluation Board (PEB) for evaluation based on this condition.

5.  On 11 May 1979, a PEB convened at WRAMC to evaluate the applicant.  The
PEB assigned a 50 percent disability rating based on the applicant’s
“depressive neurosis, severe” condition.  The PEB found this condition
rendered the applicant physically unfit for further military service, and
it recommended he be placed on the Temporary Disability Retired List (TDRL)
with reexamination during December 1980.

6.  On 5 July 1979, Orders Number D126-2, issued by the United States Army
Personnel Center, Alexandria, Virginia, dated 28 June 1979; placed the
applicant on the TDRL, effective 6 July 1979, with a 50 percent disability
rating.

7.  The applicant’s separation document (DD Form 214) shows he was
honorably released from active duty (REFRAD) on 5 July 1979, by reason of
temporary disability, and that he was placed on the TDRL.  At the time, the
applicant completed a total of 1 year, 4 months and 29 days of active
military service.

8.  On 13 March 1981, the PEB reevaluated the applicant and determined that
a rating of 10 percent more accurately reflected the degree of severity of
his condition at that time.  The PEB recommended the applicant be medically
discharged, by reason of permanent physical disability with severance pay.


9.  Orders Number D75-8, issued by the U.S. Army Military Personnel Center,
Alexandria, Virginia, dated 20 April 1981, directed the applicant’s removal
from the TDRL and his discharge by reason of permanent disability with
severance pay on 30 April 1981.

10.  Army Regulation 635-5 (Separations Documents) prescribes the
preparation guidelines for DD Form 214.  Paragraph 2-1 (Preparing the DD
Form 214) states, in pertinent part, that the DD Form 214 is a summary of a
Soldier's most recent period of continuous active duty.  It provides a
brief, clear-cut record of active duty service at the time of release from
active duty, retirement, or discharge.  The DD Form 214 is not intended to
have any legal effect on termination of a Soldier's service, and the
regulation contains a list of specific reasons that would not result in the
issue of a new DD Form 214 and stipulates that a new DD Form 214 will not
be prepared for a Soldier who is removed from the TDRL.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have Item 9d of his DD Form 214 corrected to
show a date of 30 April 1981 was carefully considered.  However, there is
insufficient evidentiary basis to support granting the requested relief.

2.  By regulation, the effective date of separation entered in Item 9d of
the
DD Form 214 will be the date the member is REFRAD, and that a new DD Form
214 will not be issued to Soldiers removed from the TDRL.

3.  The evidence of record confirms the applicant was REFRAD on 5 July 1979
and that a DD Form 214 was appropriately issued on that date upon his
completing his active duty service.  His orders attaching him to WRAMC were
from the purpose of reexamination and evaluation by the PEB, which resulted
in his removal from the TDRL and discharge, and properly executed by
orders.  These attachments did not constitute a new period of active duty
service for which a DD Form 214 would be issued.  Therefore, there is no
error in the effective date of the DD Form 214 issued to the applicant on 5
July 1979, upon his REFRAD.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 April 1981.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 19 April 1984.  He failed to 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

___JEV__  __CVM__  __LMB__  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.




                                  _____James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002404                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1981/04/30                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |TDRL removal/Severance                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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