RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 JULY 2006
      DOCKET NUMBER:  AR20050014447


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. William Crain                 |     |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 NGB Form 22 (Report of
Separation and Record of Service) be changed to reflect his retirement date
is effective
30 January 1991.

2.  The applicant states that some of his military records show that he was
retired in June 1989.  He believes the records are in error because he was
not removed from the Temporary Disability Retired List (TDRL) until 30
January 1991.  Therefore, he should be credited with 20 years of service
instead of 18 years,     4 months, and 14 days.

3.  The applicant provides his NGB Form 22, various orders, Data for
Retired Pay, Physical Evaluation Board (PEB) Proceedings, and a Certificate
of Retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 January 1991.  The application submitted in this case
is dated     26 September 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 complete military records were not available to the
Board for review.  However, there were sufficient documents to allow the
Board to conduct a fair and impartial review of the case.

4.  PEB Proceedings, dated 5 May 1989, verify that the applicant was found
unfit and he received a combined rating of 60 percent.  The PEB recommended
the applicant be placed on the TDRL with reexamination during November
1990.  The applicant signed the proceedings indicating that he concurred
with the board findings.


5.  Orders dated 30 January 1991 show the applicant was placed on the TDRL
on 13 June 1989.  He was removed from the TDRL effective 30 January 1991,
due to permanent physical disability and on the date following, he was
permanently retired.

6.  The Data for Retired Pay verifies that the applicant was removed from
TDRL on 30 January 1991 and placed on the retired list on 31 January 1991.

7.  The applicant’s NGB Form 22 show his effective date as 12 June 1989.
His total service for pay is listed as 18 years, 4 months, and 14 days.
The authority for the applicant’s discharge is listed as Army Regulation
635-40 and National Guard Regulation 600-200, paragraph 8-27n, “Placement
on TDRL.

8.  The Certificate of Retirement shows that the applicant was retired on
31 January 1991.

9.  National Guard Regulation 600-200 states, in pertinent part, that a
separation form (NGB Form 22) will be prepared for every Soldier being
discharged from the Army National Guard (ARNG) or released from the custody
and control of the military.  An individual whose name is placed on the
TDRL is considered to have been released from the ARNG and as such is
issued a NGB Form 22.  While on the TDRL individuals do not accumulate any
service and as such when their names are removed from the TDRL a new NGB
Form 22 is not issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on the TDRL on 13 June 1989 at which time he
was issued a NGB Form 22.  He was subsequently removed from the TDRL on
   30 January 1991 and permanently retired on 31 January 1991.  Based on
the cited regulation, at the time the applicant was placed on the TDRL, he
no longer accumulated service towards his retirement.  Therefore, his NGB
Form 22 that reflects 18 years, 4 months, and 14 days of total service is
correct.

2.  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.






3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 January 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on            30 January 1994.  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

__WP___  __MT ___  __WC    _  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.




                                  _____ William Powers_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014447                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060720                                |
|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.       |100.00                                  |
|2.                      |136.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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