IN THE CASE OF:
BOARD DATE: 7 April 2009
DOCKET NUMBER: AR20090000631
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, as the widow of a deceased former service member (FSM), requests, in effect, that the FSM be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) removing him from the Temporary Disability Retired List (TDRL), effective 4 May 1990
2. The applicant states that the discharge date on the FSM's DD Form 214 does not match his final discharge date.
3. The applicant provides the FSM's death certificate; a DD Form 214; orders removing the FSM from the TDRL; an Honorable Discharge Certificate; and a letter, dated 27 February 2009, from a Member of Congress in support of her 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 FSM enlisted in the Regular Army on 18 September 1985 and served as a hawk fire control crewmember. On 30 July 1987, the FSM was released from active duty and placed on the TDRL the following day. On 4 May 1990, the FSM was removed from the TDRL with a disability rating of 10 percent with severance pay.
3. Item 12b (Separation Date This Period) on his DD Form 214 shows the entry, "87 07 30" [30 July 1987].
4. Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214. The regulation states, in pertinent part, that a DD Form 214 will not be prepared for members being removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
The FSM was placed on the TDRL effective 31 July 1987 which was the date he was officially retired. His DD Form 214 properly reflects his separation date in item 12b. Since the governing regulation states that a DD Form 214 will not be prepared for members being removed from the TDRL, there is no basis for granting the applicant's requested relief.
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) AR20090000631
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ABCMR Record of Proceedings (cont) AR20090000631
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