IN THE CASE OF:
BOARD DATE: 5 February 2009
DOCKET NUMBER: AR20080009646
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 discharge date be changed from 9 June 1998 to 30 October 2000.
2. The applicant states, in effect, that his Honorable Discharge Certificate shows his discharge date as 30 October 2000.
3. The applicant provides a copy of his Honorable Discharge Certificate, dated 30 October 2000, in support of his application.
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 applicant was appointed as a second lieutenant in the Regular Army on 24 May 1989.
3. The applicant was evaluated by a Medical Evaluation Board (MEB) on 27 January 1998. The MEB found the applicant was medically unfit for further military service and referred him to a Physical Evaluation Board (PEB).
4. On 30 March 1998, a PEB determined the applicant was physically unfit for military service with a disability rating of 30 percent. The PEB recommended the applicant be placed on the TDRL with reexamination during 1 September 1999.
5. Headquarters, III Corps, Fort Hood, Texas Orders 125-0230, dated 5 May 1998, shows the applicant was released from assignment and duty on 9 June 1998 and placed him on the TDRL on the following date.
6. Item 12b (Separation Date This Period) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his separation date as 9 June 1998.
7. On 12 September 2000, an informal PEB determined the applicant was physically unfit for military service with a disability rating of 10 percent. The PEB recommended the applicant be separated with severance pay. The applicant did not concur with the PEB's findings and demanded a formal hearing.
8. A formal PEB convened on 17 October 2000 and determined the applicant was physically unfit for military service with a disability rating of 10 percent. The PEB recommended the applicant be separated with severance pay. He did not concur with the PEB's findings and elected not to submit statements in his own behalf.
9. Department of the Army, U.S. Army Physical Disability Agency, Washington, D.C., Orders D210-3, dated 30 October 2000, show the applicant was removed from the TDRL on 30 October 2000 and was discharged from the service because of permanent physical disability.
10. His Honorable Discharge Certificate shows he was honorably discharged from the U.S. Army on 30 October 2000.
11. Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. In the version in
effect at the time, it directed that the date of separation was accomplished would be entered in item 12(b) of the DD Form 214. It also states that a DD Form 214 will not be prepared for members being removed from the TDRL.
12. Title 10, U.S. Code, section 1202 provides that if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the members name on the TDRL with retired pay computed under section 1401 of this title.
DISCUSSION AND CONCLUSIONS:
1. The applicant was placed on the TDRL effective 10 June 1998. That was the date he was officially retired (even though he was not removed from the TDRL and discharged with severance pay until 30 October 2000).
2. The applicant's DD Form 214 properly reflects his separation date of 9 June 1998 in item 12b. The governing regulation states that a DD Form 214 will not be prepared for members being removed from the TDRL. Therefore, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x_____ ____x____ ____x____ 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.
________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) AR20080009646
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