IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080005010 


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, in effect, that his Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected to show that he was discharged at the expiration of his term of service (ETS) instead of showing that he was placed on the Temporary Disability Retired List (TDRL).

2.  The applicant states that in December 1991, he was separated under board action and placed on the TDRL.  He states, in effect, that he was later granted a service-connected disability rating and he separated at his ETS.

3.  The applicant provides in support of his application, an application for the Review of Discharge from the Armed Forces of the United States (DD Form 293); and one page of a Department of Veterans Affairs Rating Decision dated 14 March 1995.

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.  On 19 September 1984, the applicant enlisted in the Regular Army in Dallas, Texas, for 3 years, in the pay grade of E-1.  He successfully completed his training as a combat signaler.  He remained on active duty through two reenlistments and one extension.

3.  The applicant was promoted to the pay grade of E-2 on 9 April 1985; he was promoted to the pay grade of E-3 on 9 October 1985; he was promoted to the pay grade of E-4 on 1 December 1985; and he was promoted to the pay grade of E-5 on 5 October 1987.

4.  The available records show that the applicant was in Germany on 3 October 1990, when he was injured while riding as a passenger in a privately owned vehicle accident.  According to the records, the driver lost control of the POV, hit a guard rail, spun around, and hit the rail again.  The applicant was immediately admitted to the Krankenhaus [hospital] at Wurzburg, Germany; then transferred to Landstuhl Regional Medical Center [U.S. Army operated military hospital] at Landstuhl, Germany; and subsequently air evacuated to Darnell Army Community Hospital, at Fort Hood, Texas.  

5.  On 24 January 1991, a Medical Evaluation Board (MEB) convened to determine whether the applicant should be referred to a Physical Evaluation Board (PEB) for evaluation due to his injuries.  The MEB described his injury as comminuted sacral fracture with right sacral iliac joint disruption and right S1 nerve root irritation/injury.  He also had injuries described as right inferior gluteal nerve palsy with gluteus maximum atrophy and fracture of the right 4th metacarpal.  The MEB recommended that the applicant be referred to a PEB for evaluation.

6.  On 28 February 1991, an informal PEB convened to determine the applicant's fitness for retention on active duty.  The PEB described his condition as maximus atrophy and causalgia pain in a peroneal distribution and ambulation with a cane, status post comminuted sacral iliac fracture and joint disruption.  His condition was rated as severe.  The PEB found the applicant to be physically unfit for retention on active duty.  The PEB recommended that he be placed on the TDRL with a 60 percent combined service-connected disability rating and reexamination during 1 March 1992.

7.  The appropriate authority approved the PEB's recommendation on 13 March 1991 and on 30 September 1991, the Chief, Personal Affairs, United States Total Army Personnel Command notified the Commander, United States Army 
Physical Disability Agency that the applicant's injury was determined to be incurred in the line of duty.

8.  Accordingly, on 5 December 1991, the applicant was retired by reason of physical disability and he was placed on the TDRL.  The DD Form 214 that he was furnished reflects that he was retired by reason of physical disability and that he was placed on the TDRL.

9.  After a number of reexaminations, a formal PEB convened on 5 March 1997 to determine whether the applicant should be separated from the Army for unfitness.  The formal PEB described his disabilities as status post sacral fracture with incomplete first sacral nerve root injury with healing of fracture and partial resolution of the sacral nerve root paralysis, right side, with radiculopathy verified by electromyography.  The formal PEB found the applicant to be unfit to reasonably perform the duties required by his grade and military occupational specialty and his condition was found to be sufficiently stable for final adjudication.  The formal PEB recommended that the applicant be separated from the service, with severance pay, with a 20 percent combined service connected disability rating.  Although the available records indicate that the applicant submitted a rebuttal to the findings, the findings of the formal PEB were affirmed on 4 April 1997.

10.  On 5 December 1997, the applicant was removed from the TDRL and he was discharged from the service, with severance pay, due to permanent physical disability.

11.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty (REFRAD) or discharge.  A DD Form 214 will not be prepared upon removal from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement.


2.  At the time of the applicant’s REFRAD he was retired by reason of physical disability-temporary and placed on the TDRL.  His DD Form 214 was properly prepared to reflect this information and the fact that he was later permanently retired is an insufficient justification to warrant relief in this case.

3.  In accordance with the applicable regulation, his DD Form 214 was prepared to reflect his service as it existed on the date of his REFRAD.  Therefore, the applicant's DD Form 214 is correct as the type and narrative reason for his separation.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080005010



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ABCMR Record of Proceedings (cont)                                         AR20080005010



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