IN THE CASE OF:	  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080012758 


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, reconsideration of his previous request that Item 28 (Narrative Reason for Separation) of his 13 November 1992 separation document (DD Form 214) be corrected to show he was permanently retired vice being placed on the Temporary Disability Retire List (TDLR), as is currently shown.   

2.  The applicant states, in effect, that his medical conditions have gotten much worse since his last evaluation with the military.  He states that his conditions have become disabling to the extent that it hinders his ability to maintain gainful employment, interpersonal communications and his self-esteem.  He further states that in March 2003, his primary care nurse referred him to the mental health clinic at the Department of Veterans Affairs (VA) in Fayetteville, North Carolina (NC), where he is currently seeking further diagnostic and therapeutic intervention.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Line of Duty (DA Form 2173); 35th Signal Brigade Memorandum; Noncommissioned Officer Evaluation Report (NCOER); Neuropsychological Evaluation Report; Physical Evaluation Board (PEB) Proceedings (DA Form 199); TDRL Orders; DD Form 214; Medical Progress Notes; Post Traumatic Stress Disorder (PTSD) Certificate; Counseling Statement; NC Department of Corrections (DOC) Written Warnings; NC Medical Report; McQueen Medical Center Letter; NC DOC Short-Term Disability Approval; VA Rating Decisions; Bronze Star Medal (BSM) and Meritorious Service Medal (MSM) Certificate. 
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080012907, on 15 October 2008.

2.  All evidence provided by the applicant is new evidence that will be considered by the Board.

3.  During its original review of this case, the Board concluded that the PEB found the applicant's disabilities were unstable and as a result recommended his placement on the TDRL with a combined disability rating of 80% with reexamination within 1 year.  It further determined that the fact that he had 
20 years of active service at the time had no bearing on the validity of his placement on the TDRL.

4.  The applicant's record shows that he entered active duty in the Regular Army on 27 July 1972.  He was trained in, awarded, and served in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic) and MOS 63H (Track Vehicle Repairman).  The highest rank he attained while serving on active duty was sergeant first class (SFC).   

5.  On 29 June 1992, a PEB convened at Womack Army Hospital, Fort Bragg, NC, to evaluate the applicant.  The PEB determined the applicant was physically unfit for further service.  The PEB recommended a combined disability rating of 80 percent and placement on the TDRL with reexamination within 1 year.   

6.  On 13 November 1992, the applicant was honorably released from active duty under the provisions of Paragraph 4-24b [2], Army Regulation 635-40, by reason of Physical Disability-Temporary, and he was placed on the TDRL.  The DD Form 214 he was issued at the time shows he had completed a total of 20 years, 3 months, and 17 days of active military service.  

7.  United States Total Army Personnel Command (PERSCOM) Orders Number D13-5, dated 5 June 1996, directed the applicant's removal from the TDRL and placement on the Retired List by reason of permanent disability on 5 June 1996, with a 30 percent disability percentage.  

8.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and 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.  

9.  Appendix C-10 of the same regulation contains guidance on the TDRL.  It states, in pertinent part, that TDRL status is authorized for a maximum of 
5 years, but permanent disposition may be made at an earlier date.  It further states that periodic medical examinations are required at least every 18 months and each periodic examination report is referred to a PEB for a determination as to whether the Soldier is to be retained on, or removed from, the TDRL.  Final disposition may result in permanent retirement with the same, greater, or lesser disability percentage rating; separation with severance pay (if less than 20 years service); or a finding of physical fitness. 

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on preparation of the DD Form 214 and it states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Movement from the TDRL to the Retired List based on permanent disability is accomplished through the publication of orders.  The regulation provides no provisions for changing the DD Form 214 to document changes in status that occur subsequent to a member's separation from active duty. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 28 of his DD Form 214 should be corrected to show he was permanently retired was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, a DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and is issued upon a member's separation from active duty.  There are no regulatory provisions that provide for correcting or changing the DD Form 214 to document status changes that occur subsequent to a member's separation from active duty.  

3.  In this case, the applicant was properly issued a DD Form 214 on 
13 November 1992, which is the date he was released from active duty and placed on the TDRL.  His subsequent removal from the TDRL and placement on the Retired List by reason of permanent disability was properly accomplished through the publication of orders.  As a result, there is no error or injustice related to the narrative reason entered in Item 28 of his DD Form 214 and it would not be appropriate to grant the requested relief or to amend the original Board decision in this case.  

4.  As the applicant was advised during the original review of this case, the fact he had over 20 years of service had no bearing on his disability processing, or in his initial placement on the TDRL and/or ultimate permanent placement on the Retired List.  

5.  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

___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 to amend the decision of the ABCMR set forth in Docket Number AR20080012907, dated 15 October 2008.




      _______ _ x  _______   ___
               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)                                         AR20080012758



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ABCMR Record of Proceedings (cont)                                         AR20080012758


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