RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 22 April 2008
DOCKET NUMBER: AR20080000660
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.
Director
Analyst
The following members, a quorum, were present:
M
Chairperson
M
Member
M
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 Item 12b (Separation Date This Period) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he retired on 26 May 2000.
2. The applicant states, in effect, that he is seeking this correction so that he may pursue his education at a community college. He contends that he was not fully discharged from the Army until 26 May 2000, as shown on his Retirement Certificate. Although he was placed on the Temporary Disability Retirement List (TDRL) in 1996, he received periodic orders to report to medical facilities on the West Coast for evaluation and medical treatments. He received TDRL pay and was advised that he was under evaluation for active duty during medical treatment. He was ordered to appear before a Physical Evaluation Board (PEB) in 2000 at Fort Lewis, Washington, for final disability determination and active duty retirement. It was always his understanding that he was part of the Army during the time he was on the TDRL.
3. The applicant provides a copy a copy of his Certificate of Retirement.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The available evidence of record shows the applicant served in the Regular Army from 16 August 1994 through 30 September 1996. He was placed on the TDRL with a 40 percent disability rating. He was credited with 2 years, 1 month, and 15 days of active military service.
3. Letter Orders Number D101-11, dated 25 May 2000, removed the applicant from the TDRL on 25 May 2000 and retired him due to a permanently unfitting disability rated as 40 percent disabling, effective 26 May 2000.
4. Item 12b of the applicant's DD Form 214 shows that he was retired from active duty on 30 September 1996 by reason of "disability, temporary" under the provisions of Army Regulation 635-40, paragraph 4-24b(2).
5. Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents (DD Form 214/5). A DD Form 214 is prepared for individuals at the termination of active duty by reason of administrative separation, to include separation by reason of retirement or expiration terms of service. Paragraph 2-1b, in pertinent part, stipulates that a DD Form 214 will not be prepared for individuals removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his separation date on his DD Form 214 should be 26 May 2000, the date he was removed from the TDRL.
2. Individuals who are placed on the TDRL are not performing active military service; they are, in fact, retired. The applicant was placed on the TDRL on
30 September 1996 and he did not perform any further active duty service from that date.
3. The DD Form 214 encapsulates a period of active duty. Army Regulation 635-5 stipulates that a DD Form 214 will be prepared for individuals who are separated by reason of retirement. This regulation also stipulates that a DD Form 214 will not be prepared for individuals removed from the TDRL.
4. Since the applicant did not perform active duty after he was placed on the TDRL on 30 September 1996, his DD Form 214 correctly shows his retirement date.
5. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__rml___ __gjp___ __swf___ 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.
RML
______________________
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20080000660
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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