RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 March 2007
DOCKET NUMBER: AR20060011921
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
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. Kenneth Wright
Chairperson
Mr. Chester Damian
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 correction of item 9d (Effective Date) on his DD Form 214 (Report of Separation from Active Duty) to show 1 January 1980 instead of
31 May 1978.
2. The applicant states, in effect, that he was placed on the Temporary Disability Retired List (TDRL) in May 1978 and then he received his permanent retirement on 1 January 1980. He contends that he never received a final DD Form 214 showing this retirement date.
3. The applicant provides a Certificate of Retirement, dated 1 January 1980.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on
1 January 1980. The application submitted in this case is dated 18 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 applicants failure to timely file.
3. The applicant enlisted on 25 February 1960. He remained on active duty through continuous reenlistments. On 31 May 1978, he was released from active duty and placed on the TDRL the following day with a disability rating of 60 percent. On 31 December 1979, the applicant was removed from the TDRL with a permanent disability rating of 60 percent and permanently retired on 1 January 1980.
4. Item 9d on the applicant's DD Form 214 shows the entry, "78 05 31" [31 May 1978].
5. Army Regulation 635-5 governs the preparation of the DD Form 214. The regulation in effect at the time stated, in pertinent part, that the date separation was accomplished would be entered in item 9d on the DD Form 214. It also stated that a DD Form 214 will not be prepared for members being removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The applicant was placed on the TDRL effective 1 June 1978. That was the date he was officially retired (even though his retirement was not made permanent until 1 January 1980). His DD Form 214 properly reflects this separation date in item 9d. Since the governing regulation states that a DD Form 214 will not be prepared for members being removed from the TDRL, there is no basis for granting the applicant's request.
2. Records show the applicant should have discovered the alleged error now under consideration on 1 January 1980; therefore, the time for the applicant to file a request for correction of any error expired on 31 December 1983. 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
KW_____ _CD___ ___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.
__Kenneth Wright______
CHAIRPERSON
INDEX
CASE ID
AR20060011921
SUFFIX
RECON
DATE BOARDED
20070327
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
100.0000
2.
3.
4.
5.
6.
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