IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080007621 


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 his DD Form 214 (Report of Separation from Active Duty), with an effective date of 24 June 1974, be corrected to show award of the Purple Heart and the authority and reason for discharge.

2.  The applicant states that his Purple Heart and authority and reason for discharge were not annotated on his final DD Form 214.

3.  The applicant provides copies of his DD Forms 214 with effective dates of
29 January 1970 and 24 June 1974.

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 served in the Regular Army from 7 August 1967 through
29 January 1970.  He served in the Republic of Vietnam (RVN) from 7 January 1968 through 7 January 1969, and was awarded the Purple Heart.  He was honorably discharged for the purpose of immediate reenlistment.  He was issued a DD Form 214 covering this initial period of active duty.  This DD Form 214 shows that he was awarded the Purple Heart. 

3.  On 30 January 1970, the applicant reenlisted in the Regular Army.  He attained the grade of specialist five/E-5.  On 24 June 1974, he was placed on the Temporary Disability Retired List (TDRL).  He was properly issued a final DD Form 214 at the time he was placed on the TDRL.  The copy of the DD Form 214 provided by the applicant does not show the authority and reason for discharge.  However, the DD Form 214 contained in the applicant's official military record shows that he was retired under the provisions of Title 10, U.S. Code, Section 1202 [due to a physical disability – temporary] and assigned a Separation Designator Code (SPD) 270.

4.  On 31 July 1977, the applicant was found permanently unfit due to a physical disability, removed from the TDRL, and permanently retired due to his disability.  

5.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18. It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

6.  Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. 
A Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement but for the fact his or her disability is determined not to be of a permanent nature and stable.  



7.  Title 10, U.S. Code, sections 1201-1212, cover retirement or separation from the various departments of the armed services because of physically disability.  The responsible Secretary may retire a member of the service who becomes permanently disabled.  Pending a determination whether the physical disability is permanent, the Secretary may place the member on the TDRL for up to 5 years. Individuals on the TDRL are examined periodically "to determine whether there has been a change in the disability for which he or she was temporarily retired."  A consenting member found to be physically fit may "be recalled to active duty," if an enlisted member of the regular component. 

8.  Army Regulation 635-5 (Separation Documents), then in effect, prescribed policies and procedures regarding separation documents (DD Form 214/215).  Item 9c (Authority and Reason) of the DD Form 214 was completed in accordance with Army Regulation 635-5-1.

9.  Army Regulation 635-5-1 (SPD Codes) provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN [now called the SPD (Separation Program Designator) Codes] codes to be entered on the DD Form 214.  The regulation in effect at the time of the applicant's discharge directed that "SPD code 270 -placed on temporary disability retired list" would be entered as the narrative reason for chapter 4-4b(2) of Army Regulation 635-40. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded the Purple Heart during his first period of active duty which is reflected on his initial DD Form 214.  However, it was not included in his list of awards on his final DD Form 214, although all of his other awards and decorations earned were brought forward from his initial DD Form 214.  Therefore, the applicant's DD Form 214, with an effective date of 24 June 1974, should be corrected as directed below. 

2.  The evidence of record shows that the applicant was placed on the TDRL and temporarily retired under the provisions of Army Regulation 635-40, chapter
4-24b(2)  and Title 10, U.S. Code Section 1202, and assigned an SPD of "270."  The DD Form 214 contained in the official file is complete, to include the authority and reason for discharge.  Therefore, no further action will be taken on this request.  However, the applicant will be provided with a copy of the complete
DD Form 214.  




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___  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 amending the applicant's DD Form 214, with an effective date of 24 June 1974, to show award of the Purple Heart.

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 adding the authority and reason to the applicant's copy of his DD Form 214.


																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)                                         AR20080007621



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ABCMR Record of Proceedings (cont)                                         AR20080007621



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