RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070006095 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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, his orders be revoked and to change his status to Active Guard and Reserve (AGR) or Individual Ready Reserve (IRR) or Troop Personnel Unit (TPU).

2.  The applicant states, in effect, that he was removed (discharged) from the Temporary Disability Retired List (TDRL) on 2 July 2003.  He states that he has just received the orders as verified by an email from the Personnel and Administration Directorate (PAD), Walter Reed Army Medical Center (WRAMC).  He states, in effect, since he just received a copy of his orders, he was never informed that he should have been getting paid while on TDRL, and since he was not given a physical every 12 to 18 months, he would like to have his orders revoked.

3.  He further states, in effect, he understood that he was in the Retired Reserve so he volunteered for current operations only to find out he was still on TDRL as of 16 April 2007, and was ineligible to be mobilized.  He was told that he should have been informed of his options while on TDRL.  He believed this was just another careless action caused by the current situation at WRAMC.  He states this has caused him great financial and emotional distress, if he had taken a physical he might have been returned to AGR status to continue his military career.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), U.S. Army Physical Disability Agency (USAPDA) Orders D128-5, dated 2 July 2003, an email message, dated 26 March 2007, and U.S. Total Army Personnel Command Orders 293-4, dated 19 October 2000.

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 military service records show that he enter active duty as a Reservist on 30 April 1988.  He served in his primary military occupational specialty (PMOS) 75H (Personnel Services Noncommissioned Officer (NCO)), and also held other MOSs during his tour.  He was honorably discharged on  
31 October 2002 and placed on the TDRL on 1 November 2002.  The DD 214 he was issued shows he completed 14 years, 6 months, and 1 day Net Active Service This period.

3.  The U.S. Army Reserve Personnel Command Orders C-10-291799, dated  
24 October 2002, shows that the applicant was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit him to be placed on the TDRL with 30 percent disability. 

4.  The USAPDA Orders D128-5, dated 2 July 2003, shows that the applicant was removed from the TDRL and discharged from the service because of permanent physical disability on 2 July 2003 with entitlement to severance pay.

5.  A review of the applicant's automated miscellaneous voucher, dated  
11 September 2003 shows that he received severance pay in the gross amount of $65,030.40 with a total net pay of $48,772.80.

6.  The applicant's military service records do not contain a copy of his Medical Evaluation Board or Physical Evaluation Board proceedings.

7.  The applicant had applied for an AGR tour and his request was disapproved due to his status on TDRL.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Paragraph 
4-24b(2) states, in pertinent part, that based upon the final disposition of the USAPDA or Army Physical Disability Appeal Board (APDAB), the Personnel Command will issue retirement orders or other disposition instructions such as placement on TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his orders be revoked and to change his status to AGR or IRR or TPU.

2.  There is no evidence or indication that there was an error or injustice, which caused the applicant to be discharged for permanent physical disability, with entitlement to severance pay on 2 July 2003.

3.  Since the applicant was properly discharged, there is no reason to revoke his discharge or to return him to an active status in the United States Army Reserve.

4.  The applicant states he was never informed that he should have been getting paid while on TDRL and also given a physical every 12 to 18 months and he should have been informed of his options while on TDRL.  He also sates that it has caused him great financial and emotional distress, is noted.  However, based on the fact that the applicant signed his DD Form 214 and he received the appropriate separation orders, it is reasonable to presume that he was briefed concerning his status while on TDRL.  His records also show that he was paid severance pay in the amount of $65, 030.40 with a total net pay of $48,772.80. 

5.  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

____cd__  ____rdg__  ___cad_  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.




__________Carmen Duncan________
          CHAIRPERSON




INDEX

CASE ID
AR20070006095
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071030
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.