IN THE CASE OF:	  

		BOARD DATE:	        18 February 2009

		DOCKET NUMBER:  AR20080009684 


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 correction of the separation date on his DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)) from 11 May 1992 to 11 May 1998. 

2.  The applicant states, in effect, that the requested separation date should match the date shown on his Honorable Discharge Certificate.  

3.  The applicant provides a copy of his DD Form 215, dated 2 January 2004 and a copy of his Honorable Discharge Certificate, dated 11 May 1998, 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 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’s records show he enlisted in the Regular Army for a period of 
4 years on 27 December 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  The highest rank he attained during his military service was corporal (CPL)/E-4. 

3.  On 3 February 1992, a medical evaluation board (MEB) convened at Walter Reed Army Medical Center (WRAMC) and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant suffered from medical conditions related to Stage 1A Hodgkin’s disease, shrapnel injury to his back and left shoulder area with chronic residual pain, anxiety from cancer recurrence, esophagitis secondary to radiation therapy, and numbness over the dorsal aspect of the left foot.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).  The applicant agreed with MEB’s findings and recommendations and indicated he did not desire to continue on active duty. 

4.  On 27 March 1992, an informal physical evaluation board (PEB) convened at WRAMC to consider the applicant's case.  The PEB found that he was physically unfit to perform duties in his grade and specialty.  As a result, it recommended a combined physical disability rating of 30 percent and placement on the temporary disability retirement list (TDRL) with reexamination in April 1993.  The PEB Proceedings (DA Form 199) indicated that the VASRD code applicable to the applicant’s medical condition was 7709 (Stage 1-A Hodgkin’s Disease).  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case.

5.  On 11 May 1992, the applicant was honorably separated and was placed on the TDRL effective 12 May 1992.  The DD Form 214 he was issued shows he completed 3 years, 4 months, and 15 days of creditable military service.  Item 23 (Type of Separation) of this form shows the entry "Retirement," Item 25 (Separation Authority) shows the entry "Title 10, U.S. Code, Section 1202," and Item 28 (Narrative Reason for Separation) shows the entry "Physical Disability-Temporary."

6.  On 31 August 1993, a TDRL PEB convened at Fort Lewis, Washington, and determined that upon reexamination, the applicant's condition had not stabilized and that his disability was still rated at 30 percent and was therefore retained on the TDRL with reexamination in August 1994.

7.  On 5 May 1998, a TDRL PEB convened at Fort Sam Houston, Texas, and found the applicant’s condition did not improve to the extent that he was considered fit for duty and that he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his condition at the time was considered sufficiently stable for final adjudication.  He was rated at 20 percent under the VASRD code applicable to his medical condition.   Accordingly, the PEB recommended the applicant’s separation with entitlement to severance pay.  

8.  The applicant was informed of the PEB’s findings and recommendations; however, he desired to appeal.  His appeal was subsequently considered but the original findings and recommendations were confirmed.  Accordingly, on 8 June 1998, the U.S. Army Personnel Command, Alexandria, Virginia, published Orders D110-6 removing the applicant from the TDRL and discharging him from the Army effective 11 May 1997 with entitlement to severance pay.

9.  On 11 May 1998, the Physical Disability Agency issued the applicant an Honorable Discharge Certificate.

10.  On 2 January 2004, the applicant was issued a DD Form 215 correcting his DD Form 214 that was issued on 11 May 1992 to add award of the Purple Heart, the Combat Infantryman Badge, and the Army Commendation Medal (1st Oak Leaf Cluster).  

11.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation).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.

12.  AR 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

13.  AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that Item 12 shows the record of service and that extreme care is used when completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Item 12a shows the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued and Item 12b shows the Soldier’s transition date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government.  Furthermore, paragraph 2-1(b)3 provides that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation date on his DD Form 215 should be corrected to show he was separated on 11 May 1998.

2.  The evidence of record confirms that the applicant enlisted on 27 December 1988 and was retired on 11 May 1992 by reason of temporary physical disability. There is no evidence that the applicant performed any period of active duty subsequent to his discharge on 11 May 1992.

3.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty of more than 90 days to include attendance at basic and advanced training and is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The applicant’s removal from the TDRL and subsequent discharge with entitlement to severance pay has no impact on the DD Form 214 he was previously issued.  Furthermore, there is no provision or regulatory requirement to issue a new DD Form 214 when a Soldier is removed from the TDRL.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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.



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      _______ _   _______   ___
               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)                                         AR20080009684



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ABCMR Record of Proceedings (cont)                                         AR20080009684



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