RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 March 2007
      DOCKET NUMBER:  AR20060011913


      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.

|     |Gerard W. Schwartz                |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Ms. Ernestine I 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 total years of service be
added to his DD Form 214 (Certificate of Release or Discharge from Active
Duty).

2.  The applicant requests, in effect, that Item 12a (Date entered AD this
Period) on his DD Form 214 be changed from 78 12 14 to 76 06 11.  The
applicant also requests that Item 12b (Separation Date This Period) on his
DD Form 214 (Certificate of Release or Discharge from Active Duty) be
changed from 94 01 11 to 95 06 12.

3.  The applicant provides a copy of his DD Form 214 issued on 11 January
1994; a copy of his Honorable Discharge Certificate; a copy of Optional
Form 275 (Medical Record Report); and a copy of U.S. Total Army Personnel
Command Orders D233-16, dated 8 December 1993, placing him on the Temporary
Disability Retired List (TDRL).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
11 January 1994, the date of his retirement by reason of temporary
disability.  The application submitted in this case is dated 8 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's military records show he enlisted in the Regular Army
on
11 January 1976 for a period of 3 years.  He successfully completed basic
combat and advanced individual training and was awarded the military
occupational specialty (MOS) 91B (Medic).  The applicant was discharged for
the purpose of immediate reenlistment on 13 December 1978, after serving a
total of
2 years, 6 months, and 3 days on this enlistment.

4.  Item 15 (Date Entering Active Duty This Period) of the applicant's DD
Form 214, dated 13 December 1978, shows the entry 76 06 11 (1976 June 11).

5.  Item 9d (Effective Date) of the applicant's same DD Form 214 shows the
discharge effective date as 78 12 13 (1978 December 13).

6.  Item 18c (Total Active Service) of this DD Form 214 contained the entry

02 06 03 (2 years, 6 months, and 3 days).

7.  On 14 December 1978, applicant reenlisted in the Regular Army for an
additional 6 years.

8.  On 31 January 1983, the applicant extended his enlistment in the
Regular Army to a period of 7 years to meet time-in-service remaining
requirements to complete an overseas tour with his family.

9.  On 14 December 1985, the applicant reenlisted in the Regular Army for
another 6 years.  Records show the applicant had served a total of 9 years,
4 months, and 4 days of active service at the time of this reenlistment.

10.  On 13 September 1991, the applicant reenlisted in the Regular Army for
6 more years.  Records show the applicant had served a total of 15 years,
3 months, and 2 days of active service at the time of this reenlistment.

11.  Item 12b (Separation Date This Period) of the applicant's last DD Form
214 shows the entry 94 01 11 (1994 January 11).

12.  Item 12c (Net Active Service This Period) of the applicant's DD Form
214 shows the entry 15 00 28 (15 years and 28 days).

13.  Item 12d (Total Prior Active Service) of the applicant's DD Form 214
contained the entry 02 06 03 (2 years, 6 months, and 3 days).

14.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel
Qualification Record) does not show any periods of lost time.

15.  U.S. Total Army Personnel Command Orders D233-16, dated 8 December
1993, released the applicant from assignment and duty because of physical
disability, effective 11 January 1994 and placed him on the TDRL, effective
12 January 1994.

16.  Optional Form 275 (Medical Record Report), dated 12 May 1995, shows
that the applicant received a follow-up TDRL evaluation on 1 August 1994
and diagnosed with clinically definite multiple sclerosis with evidence of
neurogenic bladder, chronic fatigue, and impaired vision in the right eye.
It was recommended that he return for follow-up evaluation in one year.
There is no evidence in the available records that show the results of the
recommended follow-up evaluation.

17.  U.S. Total Army Personnel Command Orders D196-3, dated 7 October 1997,
removed the applicant from the TDRL, effective 7 October 1997 and
permanently retired him with 100% disability.

18.  Army Regulation 635-5 (Separation Documents) established the
standardized policy for preparing and distributing the DD Form 214.  The
regulation provides, in pertinent part, that in Item 12a, enter the
beginning date of the continuous period of active duty (AD) for issuance of
this DD Form 214, for which a DD Form 214 was not previously issued.  This
regulation also provides that in Item 12b, enter the Soldier’s transition
date.  Item 12c is the net active service this period which is computed by
subtracting item 12a from item 12b and then deducting any lost time and non-
creditable service after date of discharge.  This regulation continues that
the total prior active service in 12d will be taken from any previously
issued DD Form 214.

19.  Army Regulation 635-5, in effect at that time, states, in pertinent
part, that all separations and immediate enlistment or reenlistments
accomplished between the date of entry on active duty and the date of
separation from active duty will be entered in the Remarks section of the
DD Form 214.  This regulation also specified that separate DD Forms 214
would not be prepared for enlisted personnel who were discharged for
immediate reenlistment, effective 1 October 1979.

20.  Army Regulation 635-5 also states, in pertinent part, that 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 stipulates that a DD Form
214 will not be prepared for individuals removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the date he entered AD this period shown in
Item 12a of his 11 January 1994 DD Form 214 should be 76 06 11.  The
applicant also contends that his separation date on his this DD Form 214
should be
12 June 1995, the date of his TDRL reevaluation.


2.  Evidence of record shows that the applicant enlisted in the Army on 11
June 1976 and served until he was discharged for the purpose of
reenlistment on
13 December 1978.  Evidence shows that the applicant was issued a DD Form
214 for this period of service.  Evidence also shows that he was issued a
second DD Form 214 for his period of active service which began on 14
December 1978. Therefore, Item 12a of the DD Form 214, dated 11 January
1994, which shows the date entered active duty this period as “78 12 14” is
correct as constituted.  It appears that the applicant may not be in
possession of his DD Form 214 for his first period of active duty service.
Therefore, a copy of his 13 December 1978 DD Form 214 will be enclosed with
this Record of Proceedings.

3.  Computation of the applicant's net service for this period in
accordance with applicable regulations shows that his net active service
this period is 15 years and 28 days.  Therefore, the entry in Item 12c of
the applicant's DD Form 214 is correct.

4.  Computation of the applicant's total prior active service for this
period in accordance with applicable regulations shows that his total prior
service was
2 years, 6 months, and 3 days (the total period of active service from his
first enlistment for which a DD Form 214 was issued).  Therefore, the entry
in Item 12d of the applicant's DD Form 214 is correct.

5.  Individuals who are placed on the TDRL are not performing active
military service; they are, in fact, retired.  The applicant was placed on
the TDRL on 12 January 1994, was sent for periodic TDRL evaluations, and
did not perform any further active duty service from that date.

6.  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.

7.  Since the applicant did not perform active duty service after 11
January 1994 and was placed on the TDRL on 12 January 1994, his DD Form 214
correctly shows his separation date as 11 January 1994.  Therefore, no
correction is required to Item 12b of the applicant’s DD Form 214.

8.  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.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 January 1994; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
10 January 1997.  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

__KLW __  ___CAD _  ___EIF  _  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.




                            ____Kenneth L. Wright_____
                                      CHAIRPERSON


INDEX

|CASE ID                 |AR20060011913                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/27                              |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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