RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060010825 


	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. Gerard W. Schwartz

Acting Director

Mr. Andrew C. Jacobs

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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 the discharge date shown on her 
DD Form 214 (Certificate of Release or Discharge From Active Duty) be changed from 2 June 1995 to 15 January 1997. 

2.  The applicant, who was retired on 2 June 1995 and placed on the Temporary Disability Retired List (TDRL), then removed from the TDRL on 15 January 1997 and permanently retired on 16 January 1997 for permanent physical disability, essentially states each time she submits her DD Form 214 for any purpose, she must also submit the subsequent permanent retirement orders from January 1997.  She also states that this causes confusion and questioning as to why her retirement dates differ on each document.  She further states that she has no way to certify that her orders which permanently retired her are authentic.  She continued by essentially stating that this error has caused confusion with job applications and errors in the processing of her Montgomery GI Bill (MGIB) benefits, and that as a result, she had to forfeit educational benefits that she remained entitled to.  She also states she was advised to correct her DD Form 214 before her appeal for MGIB benefits can be processed.  She also states, in effect, that when she was placed on the TDRL in 1995, she was advised by the Fort Eustis, Virginia Transition Point that she was still considered to be active duty for the next 5 years, and that when a final decision about her medical condition was rendered, her DD Form 214 would automatically be amended to show her correct permanent retirement date.

3.  The applicant provides her DD Form 214 and orders, dated 15 January 1997, which removed her from the TDRL on that date and permanently retired her on 16 January 1997 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 15 January 1997, the date she was removed from the Temporary Disability Retired List and permanently retired the next day.  The application submitted in this case is dated 21 July 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 DD Form 214 essentially shows that she was retired due to temporary disability on 1 June 1995. 

4.  United States Total Army Personnel Command, Alexandria, Virginia Orders Number D10-09, dated 15 January 1997, removed the applicant from the TDRL on 15 January 1997 because of permanent physical disability and, on 16 January 1997, permanently retired her with a 30 percent disability. 

5.  The applicant essentially stated that each time she submitted her DD Form 214 for any purpose, she must submit the subsequent permanent retirement orders from January 1997.  She also stated that this causes confusion and questioning as to why her retirement dates differ on each document.  She further stated that she has no way to certify that her orders which permanently retired her are authentic.  She continued by essentially stating that this error has caused confusion with job applications and errors in the processing of her MGIB benefits, and that as a result, she had to forfeit educational benefits that she remained entitled to.  She also stated she was advised to correct her DD Form 214 before her appeal for MGIB benefits could be processed.  She also stated, in effect, that when she was placed on the TDRL in 1995, she was advised by the Fort Eustis, Virginia Transition Point that she was still considered to be active duty for the next 5 years, and that when a final decision about her medical condition was rendered, her DD Form 214 would automatically be amended to show her correct permanent retirement date.

6.  The applicant provided no evidence, and her military records do not contain any evidence which shows that she was advised by the Fort Eustis, Virginia Transition Point that she was still considered to be on active duty after her retirement on 1 June 1995, or that her DD Form 214 would automatically be amended to show her permanent retirement date.

7.  Paragraph 2-1 of Army Regulation 635-5 (Separation Documents) provides, in pertinent part, that a DD Form 214 will not be issued when a Soldier is removed from the TDRL.




8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the TDRL is used in the nature of a "pending list".  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, United States Code, Section 1208, (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable. 

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the discharge date shown on her DD Form 214 should be changed from 2 June 1995 to 15 January 1997. 

2.  While the Board understands the problems the applicant is encountering due to having to explain the differing dates between her retirement on 1 June 1995 and placement on the TDRL, and the date she was removed from the TDRL on 15 January 1997 and permanently retired on 16 January 1997 due to permanent physical disability.  However, there is no error in her military records.  The applicant was retired from the United States Army on 1 June 1995 due to temporary disability, and placed on the TDRL at that time.  She remained on the TDRL, which is duty on the Retired List that is not creditable for additional military service, and was permanently retired on 16 January 1997 by reason of permanent physical disability.

3.  The applicant’s contention that she was advised by the Fort Eustis, Virginia Transition Point that she was still considered to be on active duty after her retirement on 2 June 1995, or that her DD Form 214 would automatically be amended to show her correct permanent retirement date is not supported by any evidence in her military records.

4.  While the applicant contends that her discharge date shown on her DD Form 214 should be changed to show the date she was permanently retired, there is no provision of regulation that permits or requires this action.  Also, Army Regulation 635-5 clearly states that a DD Form 214 will not be issued when a Soldier is removed from the TDRL.  

5.  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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

6.  The applicant is advised that a copy of this decisional document along with her application and the supporting evidence she provided will be filed in her Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the different retirement dates shown in her OMPF.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 January 1997; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
14 January 2000.  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

___J____  __LDS___  _RSV___  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.




_____Linda D. Simmons_______
          CHAIRPERSON




INDEX

CASE ID
AR20060010825
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
136.0100.0000
2.
110.0100.0000
3.

4.

5.

6.