RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 NOVEMBER 2006
      DOCKET NUMBER:  AR20060004032


      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:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Ms. Ernestine Fields              |     |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 military records be
corrected to show that he was permanently retired from the Army by reason
of disability.

2.  The applicant states his separation document only shows his placement
on the TDRL (Temporary Disability Retired List).

3.  The applicant provides a copy of his 1971 separation document and a
copy of his 1973 retirement certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 June 1971.  The application submitted in this case is
dated
6 March 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.  Records available to the Board indicate the applicant, a United States
Army Reserve officer on active duty, was involved in a motorcycle accident
in April 1970.  A Physical Evaluation Board (PEB) determined in February
1971 that the applicant's medical conditions, resulting from the motorcycle
accident, were such that they prevented his performance of military duties
but were not sufficiently stabilized to determine whether a permanent
disability rating was warranted.  The PEB recommended the applicant's name
be placed on the TDRL with subsequent reevaluation.

4.  The recommendation was approved and on 1 June 1971 the applicant was
honorably discharged and his name placed on the TDRL.

5.  By November 1972 the applicant's medical condition had stabilized
sufficiently that a permanent disability rating could be rendered.  A PEB
recommended
the applicant be permanently retired by reason of physical disability.  The
recommendation was approved and on 31 December 1972 the applicant's name
was removed from the TDRL and he was permanently retired with an Army
disability rating of 70 percent.

6.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
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
change within the next 5 years so as to change the disability rating.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.

7.  Army Regulation 635-5 also states, in pertinent part, that a separation
report (DD Form 214) will be prepared at the conclusion of a period of
active Federal service.  An individual whose name is placed on the TDRL is
considered to have been released from active Federal service and as such is
issued a DD Form 214. While on the TDRL individuals do not accumulate
active Federal service and as such when their names are removed from the
TDRL a new DD Form 214 is not issued, as they are not in an “active”
status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s separation document is correct and the fact that he was
subsequently permanently retired by reason of physical disability is not a
basis to change his 1971 discharge from active duty.  A correction to his
separation document is not required and creates no error or injustice.

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 1 June 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
31 May 1974.  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

__MP ___  ___RR __  ___EF __  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.




                                  ____Margaret Patterson______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004032                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061109                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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