RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 September 2007
	DOCKET NUMBER:  AR20070005881 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Larry C. Bergquist

Chairperson

Ms. Marla J. N. Troup

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 the Narrative Reason for Separation on his DD Form 214 (Certificate of Release or Discharge) be corrected to show "Physical Disability-Permanent" instead of "Physical Disability-Temporary."

2.  The applicant states that he paid the U.S. Postal Service (USPS) the amount of $958 to buy back his years in the Army.  He further states that because he is receiving monthly payment from the Department of Veterans Affairs (DVA), he can't buy back his time and that the USPS will not refund his money until his DD Form 214 shows that he was placed on the permanent disability list.

3.  The applicant provides a copy of USPS letter dated 15 April 2007 requesting the he submits a corrected DD Form 214 in order to receive his refund and a copy of his record of payment to the USPS, dated 29 October 1996, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army on 21 March 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).  

3.  On 31 July 1986, while stationed in Vincenza, Italy, the applicant sustained a head injury while playing pushball during a unit-sponsored Organization Day.  A line of duty determination was not conducted by the unit.  

4.  On 13 April 1987, after a series of medical evaluations and treatments, a Medical Evaluation Board (MEB) convened at Fort Monmouth, New Jersey, to evaluate the applicant.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB) in accordance with Chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The applicant agreed with the MEB's findings and recommendation.

5.  On 23 April 1987, a PEB hearing convened at Walter Reed Army Medical Hospital (WRAMC) to determine the applicant's condition after the injury and subsequent treatments.  The PEB determined that based on medical evidence, the applicant had physical limitations which precluded adequate performance of normal duties associated with his office, grade, rank or rating.  Accordingly, he was found unfit for further service.  His condition had not stabilized to the point that a permanent degree of severity could be determined. 

6.  In the absence of an approved line of duty report concerning the applicant's physical disability, the PEB convened as if a favorable determination had been made.  The PEB directed the applicant be placed on the Temporary Disability Retired List (TDRL) with reexamination scheduled during November 1988.  The applicant concurred with the recommendation on 20 June 1987.

7.  Orders Number D118-15, US Total Army Personnel Command (PERSCOM) (currently known as the US Army Human Resources Command), Alexandria, Virginia, dated 17 June 1987, released the applicant from his assignment and duty due to a physical disability, effective 23 July 1987, and placed him on the TDRL, effective 24 July 1987.

8.  The applicant's DD Form 214 shows that, on 23 July 1987, he was retired under the provisions of Army Regulation 635-40 with an honorable discharge.  His narrative reason for separation is shown as "Physical Disability-Temporary."  He had completed 3 years, 4 months, and 3 days of creditable active service.

9.  On 13 July 1989, a PEB informally reviewed the applicant's report of his recent periodic medical examination and other records.  The present PEB hearing determined that his physical condition had not improved.  The PEB further considered the applicant to have stabilized sufficiently for rating purposes and recommended the applicant's name be removed from the TDRL and the applicant be permanently retired from the service.

10.  Orders Number D156-1, U.S. Total Army Personnel Command, Alexandria, Virginia, dated 14 August 1989, removed the applicant from the TDRL effective 15 August 1989 and placed him on the permanent disability retired list (PDRL) in pay grade E-5, with 80% disability rating.

11.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

12.  AR 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214 that is prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  Paragraph 2-1(b)3 provides that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Narrative Reason for Separation on his DD Form 214 should be corrected to show "Physical Disability-Permanent" instead of "Physical Disability-Temporary.

2.  The applicant's DD Form 214 issued on 23 July 1987 correctly shows his narrative reason for separation [retirement] as "Physical Disability-Temporary" and cannot be changed.  His removal from the TDRL and transfer to the PDRL was properly accomplished by orders issued on 14 August 1989.

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lcb___  __mjnt__  __eif___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




						Larry C. Bergquist
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005881
SUFFIX

RECON

DATE BOARDED
20070911
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.