IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080000531 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty), a Certificate of Retirement, and an Honorable Discharge Certificate. 

2.  The applicant states, in effect, that a memorandum from the U.S. Total Army Personnel Command (PERSCOM), dated 15 February 1994, stated appropriate action would be taken to certify that he was retired, by reason of disability with a disability rating of 30 percent.  The memorandum further stated he was to be issued a certificate of retirement and a new DD Form 214 or DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) by the U.S. Army Reserve Personnel Center (ARPERCEN).

3.  The applicant states that he has 25 years, 11 months, and 8 days of military service.  He has tried numerous years to obtain the above documents and has not been successful in obtaining them.  He further states that he is now 70 years of age.  He is rated as 100 percent disabled by the Department of Veterans Affairs (VA) and living on a fixed income.  Divorced and on his own, he may need to apply to the Armed Forces Retirement Home for a place to live and get medical care. 

4.  The applicant provides a memorandum from ARPERCEN, dated 15 June 1987; ARPERCEN Orders D116-17, dated 15 June 1987; a memorandum from the Department of the Army, Office of the Judge Advocate General, dated
2 February 1994; U.S. Total Army Personnel Command (TAPC) Order D31-4, 

dated 15 February 1994; a memorandum TAPC, dated 15 February 1994; a
DA Form 3713-E (Data for Retired Pay), dated 15 February 1994; and a memorandum from ARPERCEN, dated 26 June 1999.

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 had prior enlisted service.  He was appointed as a Reserve Commissioned Officer of the U.S. Army on 28 December 1976.

3.  On 6 July 1987, the applicant was discharged from the U.S. Army Reserve (USAR) in the rank of Major with severance pay with a disability rating of 
20 percent.  He had never been on extended active duty.

4.  On 31 January 1994, the United States Court of Federal Claims (USCFC) made a settlement agreement with the applicant to correct his military records to reflect that he was permanently retired from the U.S. Army on 6 July 1987, for reason of physical disability with a disability rating of 30 percent.  

5.  In a 15 February 1994 letter the Physical Disability Branch, TAPC informed the applicant that in accordance with the judgment of the USCFC, appropriate action had been taken to certify that he was retired, by reason of physical disability, with a disability rating of 30 percent.  Enclosed was a Department of the Army Order announcing this certification and a Certificate of Retirement.  The memorandum stated that a new DD Form 214 or a DD Form 215 would be forwarded to him by ARPERCEN.

6.  TAPC Order D31-4, dated 15 February 1994 show that pursuant to the judgment in the case of the applicant versus the United States, his records had been corrected placing him on the permanent disability retired list effective 6 July 1987 with a disability rating of 30 percent.

7.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  It states, in pertinent part, that regulation is applicable to members of the active duty Army, the Army National Guard (ARNG), and the USAR on active duty, active duty for training, or members of the ARNG on full-time training duty.    

8.  In May 2008, a replacement Certificate of Retirement was prepared.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was discharged from the USAR on 6 July 1987 with severance pay and a disability rating of 20 percent.  In a settlement agreement with the USCFC his records were corrected to show he was permanently retired with a disability rating of 30 percent.

2.  A letter from the Physical Disability Branch addressed to the applicant on 
15 February 1994 erroneously stated that a new DD Form 214 or a DD Form 
215 would be forwarded to him by ARPERCEN.  However, in accordance with Army Regulation 635-5 the applicant would have had to have been on active duty to be issued a DD Form 214.  There is no evidence in the applicant's records that show he was on an active duty status prior to his discharge or placement on the permanent retired list.  Therefore, he is not entitled to issuance of a DD Form 214.

3.  Additionally, the letter stated that a Certificate of Retirement was enclosed.  In the event that the certificate was misplaced a replacement certificate will be sent to the applicant.  Since the applicant was placed on the retired list and issued a certificate of retirement he is not entitled to a separate discharge certificate. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xx ___  ___xx __  ___xx __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a replacement Retirement Certificate

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to issuing him a DD Form 
214 and a Discharge Certificate.



      ___           xxxx  ___
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000531



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ABCMR Record of Proceedings (cont)                                         AR20080000531



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