IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080012502 


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 military records be corrected to show that he was retired due to permanent physical disability at the time of his removal from the Temporary Disability Retired List (TDRL). 

2.  The applicant essentially states that his military records indicate that he is not in a retired status, and wishes to have his military records corrected to indicate that he is in a retired status.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 31 March 1969; orders, dated 14 March 1969, which released him from active duty on 31 March 1969 by reason of physical disability and placed him on the TDRL on 1 April 1969; a letter, dated 26 August 1970, from the Veterans Administration [now named the Department of Veterans Affairs]; and a VA Form 21-4138 (Statement in Support of Claim), dated 15 July 1969, in support of this 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 military records show that he was honorably released from active duty by reason of physical disability on 31 March 1969, and placed on the TDRL on 1 April 1969 with a 30 percent disability rating for nephrotic syndrome [an unspecified disorder in which the kidneys are damaged, causing them to leak large amounts of protein from the blood into the urine].  The DD Form 214 that was issued to him at the time of his placement on the TDRL shows that he had completed over 6 and 1/2 years of service.

3.  A TDRL examination in November 1971 showed no significant change in the applicant's renal function.

4.  On 29 October 1973, a formal physical evaluation board (PEB) determined that subsequent physical examination findings indicated that the applicant's condition had improved and stabilized, and recommended that the applicant be separated from the service with a 10 percent disability rating and severance pay.

5.  Letter Orders Number D1-103, dated 8 January 1974, removed the applicant from the TDRL and discharged him from the service effective 31 January 1974 with 10 percent severance pay.

6.  Department of Defense Directive 1332.18 (Separation or Retirement for Physical Disability) provides, in pertinent part, that a service member shall be placed on the TDRL when the member meets the requirements for permanent disability retirement, except that the member's disability is not determined to be stable.  A disability shall be determined to be stable when the preponderance of medical evidence indicates the severity of the condition will probably not change within the next 5 years so as to warrant an increase or decrease in the disability rating percentage.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that a Soldier placed on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  It also provides that a Soldier will be removed from the TDRL and separated with severance pay if the Soldier has less than 20 years of service and is unfit because of the disability for which the Soldier was placed on the TDRL; and either the disability has stabilized at less than 30 percent; or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he was retired due to permanent physical disability at the time of his removal from the TDRL.

2.  While the applicant was placed on the TDRL with a 30 percent rating, it was subsequently determined that his condition had improved and stabilized.  As a result, he was removed from the TDRL and discharged with 10 percent severance pay.  There is no evidence in the applicant's military records and the applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout his disability processing.  Therefore, regularity must be presumed in this case.

3.  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.  In view of the foregoing, there is no basis for correcting his military records to show that he was retired due to permanent physical disability.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  __X______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20080012502



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ABCMR Record of Proceedings (cont)                                         AR20080012502



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