IN THE CASE OF:
BOARD DATE: 26 February 2009
DOCKET NUMBER: AR20080017963
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 APPLICANTS REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show service through 30 June 1974 instead of 31 July 1972.
2. The applicant states that he needs his DD Form 214 to show the additional service for him to complete 20 years of service to continue receiving retirement pay and VA disability benefits.
3. The applicant provides a letter that removed him from the Temporary Disability Retired List (TDRL) and permanently retired him, letter of transmittal of separation documents, two DD Forms 214, and a DD Form 363A (Certificate of Retirement) 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 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 records show he enlisted in the Regular Army on 18 February 1955 for a period of 3 years. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 282.10 (radar repairman). On 8 July 1957, the applicant was honorably discharged with a separation program number (SPN) of 215 to accept appointment as a warrant officer in the Army or to accept recall to active duty as an Army Reserve warrant officer.
3. On 9 July 1957, the applicant was appointed and entered active duty as a U.S. Army Reserve (USAR) warrant officer. He was subsequently promoted to chief warrant officer four (CW4)/pay grade W-4 on 30 May 1972. His DD Form 214 shows he served continuously on active duty until he was released from active duty on 31 July 1972 and placed on the TDRL on 1 August 1972 with a 30 percent disability rating. His DD Form 214 shows he completed 17 years,
5 months, and 28 days of total active service.
4. On 30 June 1974, the applicant was removed from the TDRL after having been determined to be permanently unfit for duty by reason of physical disability, and placed on the Retired List the following day.
5. Title 10, U.S. Code, Section 101, Definitions, states in pertinent part that, The term active duty means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.
6. Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. It also specifically states, in pertinent part, that a DD Form 214 will not be prepared for Soldiers "removed from the TDRL."
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the time he spent on the TDRL should be credited as active duty, and requests his DD Form 214 be corrected to show this additional active duty.
2. While time spent on the TDRL is creditable service for pay purposes, it is not active service. Assignment to the TDRL is not assignment to a unit, it does not include performance of duty, and the individual collects retired pay. The applicant was not performing full-time duty in the active military.
3. The time spent on the TDRL is properly not reflected as active duty on the applicants DD Form 214. Therefore, there is no basis for changing the separation date on the DD Form 214.
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) AR20080017963
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ABCMR Record of Proceedings (cont) AR20080017963
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