IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080018879 


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, correction of his discharge date and his total active service to account for the time he was on the temporary disability retired list (TDRL).

2.  The applicant states, in effect, that he was placed on the TDRL on 7 January 2002 and that at that time, he had completed nearly 12.5 years of active service. He was removed from the TDRL and was separated with entitlement to severance pay on 25 August 2005.  He is unsure if the separation date shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) should be adjusted from 7 January 2002 to 25 August 2005 or if his net years of active service should also be adjusted accordingly.

3.  The applicant did not provide any additional documentary evidence 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 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 records show he enlisted in the Regular Army on 11 July 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Police).  He subsequently executed several reenlistments in the Regular Army and attained the rank/grade of staff sergeant/E-6.

3.  The facts and circumstances surrounding the applicant's injury/illness are not available for review with this case.  However, on 28 August 2001, a medical evaluation board (MEBD) convened at Fort Gordon, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant’s medical conditions of probable herniated nucleus pulposus, degenerative disc disease, right ankle fracture, and quadriceps rupture, rendered him unable to fulfill the requirements of his grade and MOS.  The MEBD recommended that he be referred to a physical evaluation board (PEB).  The applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty.

4.  On 6 November 2001, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to status post right ankle fracture with residual loss of motion, chronic low back pain, and quadriceps rupture with pain and weakness.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and was granted a 20-percent disability rating for code 5271 (status post right ankle fracture), a 10-percent disability rating for code 5293 (chronic low back pain), and a 0-percent disability rating for code 5314 (quadriceps rupture).  The PEB recommended that the applicant be placed on the TDRL with a combined disability rating of 30 percent and with a reexamination during December 2002.  The applicant concurred and waived his right to a formal hearing.

5.  On 6 December 2001, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, published Orders 340-0906, releasing the applicant from active duty effective 7 January 2002 and placing him on the TDRL effective 8 January 2002.  The DD Form 214 he was issued shows he had completed 12 years, 5 months, and 27 days of creditable active military service.  Item 12b (Separation Date This Period) shows the entry "2002  01  07."

6.  On 18 February 2003, a TDRL PEB convened at Fort Sam Houston, TX, and determined that the applicant's impairment was not sufficiently stabilized to permit a final adjudication of his case.  Accordingly, the TDRL PEB recommended his retention on the TDRL with reexamination during March 2004.

7.  On 28 June 2005, a TDRL PEB convened at Fort Sam Houston, TX, and determined that the applicant remained unfit to reasonably perform the duties required by previous grade and specialty, but his condition at the time was considered sufficiently stable for final adjudication.  The PEB recommended his separation with entitlement to severance pay.  The applicant concurred.

8.  On 21 July 2005, the U.S. Army Physical Disability Agency, Washington, DC, published appropriate orders removing the applicant from the TDRL and discharging him from the Army effective 21 July 2005 with entitlement to severance pay.

9.  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.

10.  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, U.S. 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.

11.  Army Regulation 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, in effect, that his discharge date and total active service should be adjusted to account for the time he was on the TDRL.

2.  The evidence of record confirms that the applicant’s temporary retirement was based on the fact that he underwent a PEB that found him physically unfit to perform duties in his grade and specialty.  As a result, it recommended a combined physical disability rating of 30 percent and placement on the TDRL.  He was accordingly separated on 7 January 2002 and placed on the TDRL on 8 January 2002.

3.  The applicant's DD Form 214 issued on 7 January 2002 correctly shows his date of separation and the reason for separation as "disability, temporary" and cannot be changed.  His removal from the TDRL and subsequent discharge with entitlement to severance pay has no impact on the DD Form 214 he was previously issued.  Furthermore, the applicant did not perform any active service from the time he was placed on the TDRL to the time he was removed from the TDRL.  There is no provision or regulatory requirement to issue a new DD Form 214 when a Soldier is removed from the TDRL.

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.


																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)                                         AR20080018879



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ABCMR Record of Proceedings (cont)                                         AR20080018879



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