IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080010009


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 the type of separation indicated on his DD Form 214 (Report of Separation from Active Duty) be changed from "Retirement" to something different.

2.  The applicant states he was just discharged for a physical disability.  He is trying to retire from the US Postal Service (USPS) and they believe he is receiving a retirement annuity from the Army.  He wants to include his military service in computing his USPS retirement.

3.  The applicant provides a copy of his DD Form 214.

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 4 years on 5 November 1973.  Upon completion of all required military training, he was awarded military occupational specialty (MOS) 11B (Infantryman) and sent to Germany.

3.  In February 1975, he was admitted to a military medical facility in Germany.  On/about 20 February 1975, he was medically evacuated to the United States and admitted at Fitzsimons Army Medical Center, Denver, CO.  There he was referred to the Physical Disability Evaluation System (PDES).

4.  The applicant underwent a Medical Evaluation Board (MEB) on 26 March 1975 which found him unfit and recommended he be considered for disability separation by a Physical Evaluation Board (PEB).  He was considered by a PEB on 2 May 1975 and determined to be physically unfit with a combined rating of 100% disabled and placed on the Temporary Disability Retired List (TDRL) with reexamination in October 1976.

5.  The applicant was reexamined by a PEB  on 6 December 1976 and it was recommended he be retained on the TDRL with reexamination in June 1978.

6.  The applicant's condition was again reviewed by a PEB on 14 August 1978.  At that review, his condition was found to have improved dramatically and it was recommended he be removed from the TDRL and separated from the service with 0% disability.  The recommendation of the PEB was approved by the US Army Physical Disability Agency (USAPDA) and, on 12 October 1978, Orders D199-17, published by the US Army Military Personnel Center, Alexandria, VA, removed him from the TDRL and discharged him from the Army because of permanent physical disability with a disability percentage of 0%, and with entitlement to severance pay.

7.  Title 10, USC chapter 61, provides the Secretaries of the Military Departments with authority to retire or separate members for physical disability.  DOD Directive 1332.18, DOD Instruction 1332.38, DOD Instruction 1332.39, and
AR 635-40 set forth the policies and procedures implementing the statute.

8.  The USAPDA is the Army's functional proponent for the PDES.  Soldiers are referred into the PDES five ways:  MEB, MOS/Medical Retention Board (MMRB), fitness for duty medical examination; Headquarters Department of the Army (HQDA) action, or Reserve Component non-duty-related process.  Four factors determine whether disposition is fit for duty, permanent retirement, temporary disability retirement, or separation:  whether the Soldier can perform in his/her 

MOS; the rating percentage (if Soldier has fewer than 20 years of active service or 7200 points of combined active and inactive duty); the stability of the disabling condition; and years of active service (active duty) in the case of pre-existing conditions.

	a.  Fit for Duty:  The Soldier is found fit when they can reasonably perform the duties of their grade and military occupational specialty (or branch for officers).

	b.  Permanent retirement:  Placement on the Permanent Retired List occurs if the Soldier is found unfit, the disability is determined permanent and stable and rated at a minimum of 30%, or the Soldier has 20 years of service as computed under 10 USC 1208 (for Reserve Component Soldiers, this means at least 7200 total points).

	c.  Temporary retirement:  Placement on the Temporary Disability Retirement List (TDRL) occurs if the Soldier is found unfit and entitled to permanent disability retirement except that the disability is not stable for rating purposes.  "Stable for rating purposes" refers to whether the condition will change within the next five years so as to warrant a different disability rating.  However, stability does not include latent impairment--what might happen in the future.

	d.  Separation with severance pay:  Separation with disability severance pay occurs if the Soldier is found unfit, has less than 20 years of service as computed under 10 USC 1208, and has a disability rating of less than 30%.

	e.  Separation without benefits:  Separation without disability benefits occurs if the unfitting disability existed prior to service, was not permanently aggravated by military service, and the member has less than 8 years of active service (active duty days); or the disability was incurred while the Soldier was absent without leave or while engaging in an act of misconduct or willful negligence.  The National Defense Authorization Act for Fiscal Year 2000 (NDAA FY 00) added 10 USC 1207a to provide disability benefits for unfitness due to pre-existing disability when the member is on ordered active duty of more than 30 days, and the member will have a total of 8 years of active service at time of separation. The NDAA FY 05 added 10 USC 1206a to preclude such coverage if the member is released within 30 days of being ordered to active duty due to identification of a pre-existing condition not aggravated during the call to duty.

9.  The law requires Soldiers placed on the TDRL to undergo a periodic medical reexamination within 18 months followed by PEB evaluation.  The Soldier may be retained on the TDRL or a final determination may be made.  While the law 

provides for a maximum tenure of 5 years on the TDRL, there is no entitlement to be retained for the entire period.  The final determination may be fit, separation with severance pay, separation without entitlement to disability benefits, or permanent disability retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the type of separation on his DD Form 214 should be changed from “Retirement” to something different.  However, the evidence of record confirms he was retired by reason of temporary physical disability and placed on the TDRL.  Therefore, his DD Form 214 is correct as constituted.

2.  The applicant was a Regular Army Soldier.  He was found to have an unfitting medical condition and he was referred to the PDES.  While his condition was determined to be 100% disabling, it was not determined to be stable and he was placed on the TDRL.

3.  Active duty Soldiers placed on the TDRL are provided DD Forms 214 to show their termination of active service.  The reason for the termination is "retirement," albeit temporary retirement.

4.  The applicant was reevaluated at intervals and was determined to have improved to the point he could be removed from the TDRL and separated by reason of physical disability with entitlement to severance pay.  When Soldiers are processed in this fashion – removal from temporary retired status – they do not receive a DD Form 214, but received instead a set of orders from the Army.

5.  The applicant is not a military retiree.  On 31 October 1978, he was effectively discharged from the Army following his removal from the TDRL.  As such, he does not receive any retirement benefits or a retirement annuity from the Army.  For the purposes of adding to his USPS civil service retirement, his active service from 5 November 1973 through 16 June 1975 should be considered.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.





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)                                         AR20080010009



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ABCMR Record of Proceedings (cont)                                         AR20080010009



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