RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060012117


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E Anderholm             |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |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 his record be corrected to show
his correct retirement date.

2.  The applicant states, in effect, his separation document (DD Form 214)
shows he was discharged on 17 December 1991; however, this is the date he
was placed on the Temporary Disability Retired List (TDRL).  He claims he
was not released from the service until 24 September 1993.

3.  The applicant provides the following documents in support of his
application:  DD Form 214; United States Total Army Personnel Command
(PERSCOM) Orders Number D183-31, dated 24 September 1993; PERSCOM Orders
Number D238-5, dated 26 November 1991; and Meritorious Service Medal
Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 24 September 1993, the date of his discharge and placement
on the Retired List.  The application submitted in this case is dated 17
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 record shows that he entered active duty in the Regular
Army on 5 August 1980.  He was trained in, awarded, and served in military
occupational specialty (MOS) 19K (Armor Crewman) and MOS 00R
(Recruiter/Retention Noncommissioned Officer.  The highest rank he attained
while serving on active duty was staff sergeant (SSG).

4.  On 13 November 1991, a Physical Evaluation Board (PEB) convened at Fort
Sam Houston, Texas, to evaluate the applicant.  The PEB determined the
applicant was physically unfit for further service.  The PEB recommended a
combined disability rating of 30 percent (%), and the applicant's placement
on the TDRL with a reexamination during June 1993.

5.  On 17 December 1991, the applicant was honorably released from active
duty after completing a total of 11 years, 4 months, and 13 days of active
military service.  The DD Form 214 he was issued confirms he was released
from active duty under the provisions of Title 10, United States Code 1202,
by reason of Disability-Temporary, and that he was placed on the TDRL.

6.  On 14 July 1993, a PEB convened at Fort Sam Houston, Texas, to
reevaluate the applicant.  The PEB determined the applicant was physically
unfit for further service with a combined disability rating of 20%.  The
PEB recommended the applicant be discharged with severance pay.

7.  PERSCOM Orders Number D183-31 directed the applicant's removal from the
TDRL and discharge from the service on 24 September 1993, with a 20%
disability rating.  These orders also authorized the applicant's
entitlement to severance pay.

8.  The applicant provides an MSM Certificate that shows he was awarded the
MSM for the period 1 September 1989 through 7 May 1991.

9.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his or her office, grade,
rank, or rating.  If a Soldier is found unfit because of physical
disability, this regulation provides for disposition of the Soldier
according to applicable laws and regulations.  Appendix C-10 contains
guidance on the TDRL.  It states, in pertinent part, that TDRL status is
authorized for a maximum of 5 years, but permanent disposition may be made
at an earlier date.  It further states that periodic medical examinations
are required at least every 18 months and each periodic examination report
is referred to a PEB for a determination as to whether the Soldier is to be
retained on, or removed from, the TDRL.  Final disposition may result in
permanent retirement with the same, greater, or lesser disability
percentage rating; separation with severance pay (if less than 20 years
service); or a finding of physical fitness.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for Soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.  Chapter 2 contains guidance on preparation of the DD Form 214 and it
states, in pertinent part, that the DD Form 214 is a summary of a Soldier's
most recent period of continuous active duty. It provides a brief, clear-
cut record of active duty service at the time of release from active duty,
retirement, or discharge.
11.  The separation documents regulation further states that for Active
Army Soldiers, a DD Form 214 will be prepared upon termination of active
duty by reason of administrative separation (including separation by reason
of retirement or expiration term of service (ETS)), physical disability
separation, or punitive discharge under the Uniform Code of Military
Justice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show
his correct separation and discharge dates was carefully considered.
However, there is insufficient evidence to support this claim.

2.  By regulation, a DD Form 214 is a summary of a Soldier's most recent
period of continuous active duty, and is prepared on an Active Army Soldier
upon their termination of active duty by reason of physical disability
separation.  In this case, the applicant was properly issued a DD Form 214
on 17 December 1991, which is the date he was separated from active duty
for placement on the TDRL. As a result, there is no error or injustice
related to the separation date entered in Item 12b (Separation Date This
Period) of his DD Form 214.

3.  The evidence of record also confirms that after being reevaluated by a
PEB in 1993, the applicant's disability rating was changed from 30 to 20%,
and he was accordingly discharged on 24 September 1993, by reason of
disability with a 20% disability rating, and was authorized severance pay.
His removal from the TDRL and discharge were authorized and directed in
PERSCOM Orders Number D183-31, dated 24 September 1993.  These orders
properly document the applicant's removal from the TDRL and final
discharge.  Therefore, there is no apparent error or injustice related to
the orders documenting his final discharge.

4.  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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 September 1993, the date of his
final discharge from the Army.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 23 September
1997.  He failed to 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

___JEA__  __SWF__  ___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.




                                  _____James E. Anderholm ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012117                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1993/09/24                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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