RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  March 8, 2007
	DOCKET NUMBER:  AR20060011382 


	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.




	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 the effective date of separation on his DD Form 214 (Report of Separation from Active Duty) be changed to 1 February 1981.

2.  The applicant states that his DD Form 214 shows he was discharged in 1979 without his signature on the form, but his Certificate of Retirement shows he retired on 1 February 1981.  

3.  The applicant provides a copy of his Certificate of Retirement, dated 1 February 1981; a Clinical Record; his orders removing him from the Temporary Disability Retired List (TDRL), dated 2 January 1981; a permanent change of station statement, dated 9 March 1979; a letter from Headquarters, Fort Belvoir Medical Department Activity, Fort Belvoir, Virginia, dated 16 September 1980; a letter from the Department of the Army, U.S. Army Physical Evaluation Board, Washington, D.C., dated 13 November 1980; and a letter from the Department of the Army, U.S. Army Finance and Accounting Center, Indianapolis, Indiana.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 1 February 1981.  The application submitted in this case is dated 7 August 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 enlisted in the West Virginia Army National Guard on 19 April 1962 and was discharged on 5 December 1963.  He enlisted in the Regular Army on 6 December 1963 and was discharged on 21 June 1965 for immediate reenlistment.  He reenlisted on 22 June 1965 and continued to serve on active duty through a series of reenlistments.  He was promoted to staff sergeant on 1 March 1973.  

4.  On an unknown date, the applicant was evaluated by a Medical Evaluation Board and was referred to a Physical Evaluation Board (PEB).

5.  An informal PEB convened on 6 March 1979.  The PEB proceedings described the applicant’s condition as intervertebral disc syndrome manifested by low back pain and bilateral sciatica.  The PEB found the applicant physically unfit and recommended a combined rating of 40 percent and that he be placed on the TDRL with reexamination during September 1980.

6.  On 9 March 1979, the applicant signed a statement from the Military Personnel Branch at Walter Reed Army Medical Center indicating that he desired to be placed on permanent change of station in Radcliff, Kentucky to await further orders.

7.  Department of the Army, U.S. Army Military Personnel Center, Alexandria, Virginia Orders 79-1, dated 23 April 1979, released the applicant from assignment and duty on 1 May 1979 due to physical disability and he was placed on the TDRL on 2 May 1979.

8.  Item 9d (Effective Date) on his DD Form 214 shows the entry “79 05 01.”  He completed a total of 17 years and 13 days of military service.

9.  Item 38 (Record of Assignments) on the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was released from active duty by reason of retirement on 1 May 1979.

10.  The applicant was reexamined on 29 September 1980.  The PEB reviewed the report of his periodic medical examination and recommended that his name be removed from the TDRL.

11.  Department of the Army, U.S. Army Military Personnel Center, Alexandria, Virginia Orders D1-14, dated 23 April 1979, removed the applicant from the TDRL on 31 January 1981 because of permanent disability and he was permanently retired on 1 February 1981.

12.  The applicant’s Certificate of Retirement shows he was retired on 1 February 1981.  

13.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In the version in effect at the time, it directed that the effective date of separation would be entered in item 9(d) of the DD Form 214.  

14.  Title 10, U.S. Code, section 1202 states if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical problems indicate the disability may be of a permanent nature, place the member’s name on the TDRL with retired pay.  

DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant was released from active duty on 1 May 1979 due to physical disability and was placed on the TDRL on the following date.

2.  The applicant’s DD Form 214 was meant only to be a brief record of his active Army service at the time of his release from active duty for the purpose of physical disability retirement.  On 31 January 1981, the applicant was removed from the TDRL and permanently retired; however, he was released from active Army service on 1 May 1979.  Therefore, his DD Form 214 correctly shows his separation date as 1 May 1979.  

3.   Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 February 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 January 1984.  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

_____  _____  ______  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.




x________
          CHAIRPERSON




INDEX

CASE ID
AR20060011382
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0000
2.

3.

4.

5.

6.