RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20060001463


      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. Karl L. Briales               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 his records be corrected to
show all of his active duty service.

2.  The applicant states he was drafted on 21 April 1971 (sic) and remained
on active duty until he was placed on the Temporary Disability Retired List
(TDRL) on 1 August 1990.  He was removed from the TDRL on 21 May 1992 and
was permanently retired.  He claims he "drew full pay and benefits" while
on the TDRL; therefore, he should receive active duty credit for that time.
 He continues that he sat in limbo on the TDRL for nearly 2 years waiting
for the Army to decide his future, and not knowing what the Army was going
to do was a nightmare.  He states he couldn't make plans for his family,
and he kept his bags packed to go back to work.  He concludes that all he
wanted was closure, so when the time came for a decision, he said "okay,"
but when he saw his DD Form 214 (Certificate of Release or Discharge from
Active Duty), he felt disappointed with himself because, on paper, it
looked like he didn't finish the job by retiring with 20 years of service.
He knows the system failed him because he actually had 21 years and 1 month
of active military service standing ready to be of service to his country.

3.  The applicant did not provide any additional documentary evidence in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 May 1992, the date he was permanently retired due to
physical disability.  The application submitted in this case is dated 20
January 2006.

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 available evidence of record shows the applicant served in the
Regular Army from 20 April 1971 (not 21 April 1971) through 31 July 1990.
4.  Orders D118-15, Department of the Army, US Total Army Personnel
Command, Alexandria, VA, dated 13 June 1990, retired the applicant on 31
July 1990 and placed him on the TDRL, effective 1 August 1990, with a
disability rating of 40 percent.  He was credited with 19 years, 3 months,
and 11 days of active Federal service.  On 1 August 1990, he began
receiving disability retired pay at the rate of 50 percent of his basic
pay.

5.  The applicant was issued a DD Form 214 when he was removed from active
duty.  This document shows he completed 19 years, 3 months, and 11 days of
creditable active Federal service.  He was retired under the provisions of
Army Regulation (AR) 635-40, paragraph 4-24e(2), by reason of "physical
disability – temporary."

6.  Orders D101-15, Department of the Army, US Total Army Personnel
Command, Alexandria, dated 21 May 1992, removed the applicant from the
TDRL, effective 21 May 1992, and was permanently retired on 22 May 1992
with a disability rating of 40 percent.

7.  Army Regulation 635-5 (Separation Documents) prescribes policies and
procedures regarding separation documents (DD Form 214/5).  A DD Form
214 is prepared for individuals at the termination of active duty by reason
of administrative separation (to include separation by reason of retirement
or expiration terms of service).  Paragraph 2-1b, in pertinent part,
stipulates that a DD Form 214 will not be prepared for individuals removed
from the TDRL.

8.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) according to the provisions of Chapter 61, Title
10, United States Code (10 USC 61) and Department of Defense Directive
(DODD) 1332.18.  It sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his or her office, grade,
rank, or rating.  If a Soldier is found unfit because of physical
disability, the regulation provides for disposition of the Soldier
according to applicable laws and regulations.  Paragraph 4-24e(1) of the
regulation then in effect states that, based upon the final decision, the
US Total Army Personnel Command (PERSCOM, now the US Army Human Resources
Command, Alexandria, Virginia) will issue retirement orders for permanent
retirement for physical disability.

9.  Army Regulation 635-40, paragraph 7-2, provides a distinction between a
temporary and permanent physical disability.  It states that an individual
may be placed on the TDRL (Temporary Disability Retired List) for a maximum
period of 5 years (which is allowed by Title 10, United States Code,
section 1210) when it is determined that the individual's physical
disability is not stable and he or she may recover and be fit for duty, or
the individual's disability is not stable and the degree of severity may
increase within the next 5 years so as to change the disability rating.

10.  Retired pay is generally computed either on length of service or on a
percentage of disability.  For Soldiers who first entered a uniformed
service before 8 September 1980, computation of retired pay based on length
of service is calculated by multiplying the basic monthly pay for the
Soldier's retired grade at the time of retirement by the years of
creditable active federal service at the rate of 2.5 percent for each whole
year of service.  This is called the "Final Pay" retirement system.  Under
this system, a Soldier would receive 50% for 20 years of service up to a
maximum of 75% for 30 years.  If retired by reason of physical disability,
a Soldier has the option of receiving retired pay based upon the percentage
of disability if this method would result in a more favorable amount of
retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the separation date on his DD
Form 214 should be 21 May 1992, the date he was removed from the TDRL.

2.  The DD Form 214 only reflects active duty service; Soldiers placed on
the TDRL are not performing active military service.  The applicant was
placed on the TDRL on 1 August 1990, and did not perform any further active
duty service after 31 July 1990.

3.  The DD Form 214 encapsulates a period of active duty.  Army Regulation
635-5 stipulates that a DD Form 214 will be prepared for individuals who
are separated by reason of retirement.  This regulation also stipulates
that a DD Form 214 will not be prepared for individuals removed from the
TDRL.

4.  Since the applicant did not perform active duty after 31 July 1990 and
was placed on the TDRL on 1 August 1990, his DD Form 214 correctly shows
his separation date as 31 July 1990.

5.  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 did not submit any evidence that would
satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 May 1992, the date he was
permanently retired due to physical disability; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 21 May 1995.  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

__alr___  __lmb___  __qas___  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.



                                        Allen L. Raub
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001463                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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