IN THE CASE OF:	  

		BOARD DATE:	       13 November 2008

		DOCKET NUMBER:  AR20080014358 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the type of separation as “Honorable Discharge” instead of “Temporary Disability Retirement.” 

2.  The applicant states that she was initially placed on the Temporary Disability Retired List (TDRL) in 2004.  When she returned for a reexamination, she was removed from the TDRL and was discharged with entitlement to severance pay. However, her DD Form 214 still states that she was medically retired.  

3.  The applicant provides a copy of her DD Form 214, dated 8 January 2004 and a copy of U.S. Army Physical Disability Agency (USAPDA), Washington, DC, Orders D242-07, dated 30 August 2005, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Regular Army for a period of 5 years on 27 August 2992.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 93P (Aviation Operations Specialist).  She also executed a series of reenlistments in the Regular Army and was promoted to staff sergeant (SSG) on 1 September 2001. 

2.  The applicant’s awards and decorations include the Army Commendation Medal (2nd Award), the Army Achievement Medal (3rd Award), the Good Conduct Medal (3rd Award), the National Defense Service Medal (2nd Award), the Non Commissioned Officer Development Ribbon with numeral 2, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar   (M-16), the Senior Aviation Badge, the Overseas Service Ribbon, and the Driver/Mechanic Badge.

3.  On 5 November 2003, a Medical Evaluation Board (MEB) convened at Fort Rucker, Alabama, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant suffered from medical conditions related to chronic Hepatitis B, chronic daily headache with intermittent migraines, and major depressive disorder.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).  The applicant agreed with MEB’s findings and recommendations and also indicated she did not desire to continue on active duty. 

4.  On 20 November 2003, an informal PEB convened at Fort Sam Houston, Texas, to consider the applicant's case.  The PEB found that she was physically unfit to perform duties in her grade and specialty.  As a result, it recommended a combined physical disability rating of 30% and placement on the TDRL with reexamination in December 2004.  The PEB Proceedings (DA Form 199) indicated that the VASRD codes applicable to the applicant’s medical condition were 7345 (Chronic Hepatitis B with Fatigue and Arthralgia), rated at 20 percent, and 5399-5323 (Chronic Daily Tension Headaches with Episodic Migraines), rated at 10 percent.  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of her case.

5.  On 8 January 2004, the applicant was honorably separated and was placed on the TDRL effective 9 January 2004.  The DD Form 214 she was issued shows she completed 11 years, 4 months, and 12 days of creditable military service.  Item 23 (Type of Separation) of this form shows the entry “Retirement,” Item 24 (Character of Service) shows the entry “Honorable,” Item 25 (Separation Authority) shows the entry “AR 635-40, Paragraph 4-24B(2),” and Item 28 (Narrative Reason for Separation) shows the entry “Disability-Temporary.” 

6.  On 18 August 2005, a TDRL PEB convened at Fort Lewis, Washington, and found the applicant’s condition did not improve to the extent that she was considered fit for duty.  The PEB Proceedings indicated that the VASRD code applicable to the applicant’s medical condition was 7345 (Chronic Active Hepatitis B with Fatigue and Arthralgia), rated at 20 percent, and that her previously rated condition of chronic daily headaches was no longer unfitting.   Accordingly, the PEB recommended the applicant’s separation with entitlement to severance pay.  The applicant again concurred with the TDRL PEB findings and recommendations and waived a formal hearing of her case.

7.  On 30 August 2005, the USAPDA, Washington, DC, published Orders    D242-07 removing the applicant from the TDRL and discharging her from the Army effective 30 August 2005 with entitlement to severance pay.

8.  Army Regulation 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.

9.  Army Regulation 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.

10.  AR 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214 that is prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  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 that type of separation should be changed from temporary disability retirement to an honorable discharge.

2.  The evidence of record confirms that the applicant’s temporary retirement was based on the fact that she underwent a PEB that found her physically unfit to perform duties in her grade and specialty.  As a result, it recommended a combined physical disability rating of 30% and placement on the TDRL.  Absent the unfitting medical conditions, there was no fundamental reason to convene an MEB and/or a PEB.  The underlying reason for her temporary retirement was her medical condition.  The only valid type of separation permitted for this type of separation is "Retirement." 

3.  The applicant's DD Form 214 issued on 8 January 2004 correctly shows her narrative reason for separation [retirement] as "Physical Disability-Temporary" and cannot be changed.  Her removal from the TDRL and subsequent discharge with entitlement to severance pay has no impact on the DD Form 214 she 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.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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)                                         AR20080014358



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ABCMR Record of Proceedings (cont)                                         AR20080014358



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