RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060008031 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck

Member

Mr. Donald L. Lewy

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 that his creditable military service in item 22b (Total Active Service) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected.

2.  The applicant states, in effect, that his creditable military service is incorrect.  He states that his DD Form 214 does not account for his time he was on Temporary Disability Retired List (TDRL).  Also, be believed that his time on TDRL is creditable service under the Civil Service Retirement System.

3.  The applicant provides:

     a.  a copy of his DD Form 214;

     b.  a copy of three letters from the Office of The Adjutant General, dated  
28 May 1971, 21 August 1972, and 4 December 1972; and

     c.  a copy of a letter from his elected representative, dated 19 May 2006.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an alleged error which occurred on  
31 December 1972, the date he was discharged from active duty and placed on TDRL. The application submitted in this case was received on 6 June 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 applicant's records show that he entered active duty on 4 September 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 95C1O (Correctional Specialist).

4.  He served with the 521st Military Police Company, Fort Belvoir, Virginia during the period 24 February 1970 to 10 June 1971.  On 11 June 1971, he was determined to be unfit for duty by reason of physical disability.  He was then released from active duty and placed on TDRL.  His DD Form 214 shows that he had completed a total of 1 year, 9 months, and 8 days of creditable military service.

5.  On 31 December 1972, the applicant was determined to be permanently unfit for duty by reason of physical disability and was removed from TDRL.  He was permanently retired on 1 January 1973.

6.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation state, in pertinent part, that you enter in item 22b of the DD  
Form 214 the total active service the Soldier has completed beginning with the earliest period of active service up to and including current period of active duty, less any period served in the Army National Guard or U.S. Army Reserve on active duty, and less time lost under title 10, United States Code, section 972.

7.  Title 10, U,.S Code section 101, states that the term "active duty" means full-time duty in the active military service of the United States.  Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the Military department concerned.  Such term does not include full-time National Guard Duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his creditable military service on his DD Form  
214 did not account for his time on TDRL.

2.  Time spent on the TDRL is not active duty.  The applicant was properly issued a DD Form 214 when he was released from active duty and placed on the TDRL. He is not entitled to a second DD Form 214 or an amendment to his existing DD Form 214.

3.  Calculation of creditable military service under the Civil Service Retirement System is not within the jurisdiction of the ABCMR.

4.  In order to justify correction of a military record the applicant must, 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.  It is determined that the applicant was separated in accordance with all regulations in effect at the time.

5.  Based on the evidence above, the total active service in item 22b of the applicant's DD Form 214 is determined to be correct.
6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 December 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
30 December 1975.  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

____mjnt_  ___jgh___  ___dll___  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.




__________Marla J. N. Troup_______
          CHAIRPERSON




INDEX

CASE ID
AR20060008391
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070221
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.

2.

3.

4.

5.

6.