IN THE CASE OF:
BOARD DATE: 15 October 2008
DOCKET NUMBER: AR20080012907
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 narrative reason for his separation be changed from Physical Disability Temporary, to Physical Disability Permanent.
2. The applicant states that since he had over 20 years of active service, there was no reason to say his disability was temporary.
3. The applicant does not provide any additional documents in support of his request.
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 applicants military records show that he enlisted in the Regular Army on 27 July 1972, served continuously through reenlistments, was promoted to pay grade E-7, and was placed on the Temporary Disability Retired List (TDRL) on 13 November 1992, rated 80 percent disabled. He had a total of 20 years, 3 months, and 17 days of active duty.
3. On 20 October 1995, a periodic Physical Evaluation Board (PEB) determined that the applicants medical condition had stabilized to the point where it could be permanently rated, and rated him 30 percent disabled. The applicant did not concur and demanded a formal hearing. On 14 March 1996, a formal PEB determined that the applicant should be permanently retired with a disability rating of 30 percent.
4. Accordingly, on 4 June 1996 the applicant was removed from the TDRL and was placed on the Retired List for physical unfitness the following day.
5. Army Regulation 635-40 dated 15 August 1990, paragraph 7-2 states that a Soldiers name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under 10 USC 1201 but for the fact that his or her disability is determined not to be of a permanent nature and stable.
6. Army Regulation 635-40 dated 15 August 1990, paragraph 7-11 states that a soldier whose name is on the TDRL will be permanently retired if the Soldier is unfit, if the disability causing the Soldiers name to be placed on the TDRL has become permanent, and the disability is rated at 30 percent or more or the Soldier has at least 20 years of active Federal service.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that since he had over 20 years of active service, there was no reason to say his disability was temporary is not accepted.
2. The applicants disability was not stable, as evidenced by his rating of 80 percent upon placement on the TDRL being reduced to his final rating of 30 percent when he was removed from the TDRL.
3. The fact that the applicant had over 20 years of active duty has no bearing on the validity of his placement on the TDRL.
4. In view of the foregoing, there is no basis for granting the applicants 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.
__________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) AR20080012907
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