IN THE CASE OF:
BOARD DATE: 07 APRIL 2009
DOCKET NUMBER: AR20090001118
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that he was permanently retired by reason of disability.
2. The applicant states that his DD Form 214 shows in block 28 the narrative reason for his separation as "Disability, Temporary" and should now show "Disability, Permanent."
3. The applicant provides a copy of the letter from the Physical Disability Agency (PDA) informing him that he was being permanently retired, a copy of orders removing him from the Temporary Disability Retired List (TDRL) and permanently retiring him with a 40 percent (%) disability rating on 27 March 2008, a copy of his Department of Veterans Affairs (VA) Rating Decision granting him a 70% service-connected disability rating effective 29 October 2007, and a copy of his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving in the United States Army Reserve (USAR) in the pay grade of E-4 in Puerto Rico as a motor transport operator when he was ordered to active duty on 11 February 2003, in support of Operation Enduring Freedom. He deployed to Iraq on 11 May 2003 and on 24 March 2004, he was promoted to the pay grade of E-5.
2. On 29 June 2005, the applicant was honorably released from active duty (REFRAD) and was transferred to the TDRL under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(2), by reason of disability, temporary.
3. On 7 February 2008, a Physical Evaluation Board (PEB) convened at Fort Sam Houston, Texas to re-evaluate the applicant's condition and to make a determination as to his medical condition. The PEB determined that the applicant was unfit and recommended permanent retirement with a combined rating of 40%. The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing in his case.
4. Accordingly, the applicant was removed from the TDRL and was permanently retired on 27 March 2008, with a 40% disability rating.
5. Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 is a summary of the SoldierÂ’s most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a SoldierÂ’s service. It also provides that a DD Form 214 will NOT be prepared for Soldiers removed from the TDRL. Additionally, events that occur after the effective date of the DD Form 214 will NOT be entered on a DD Form 214 retroactively.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. At the time the applicant was REFRAD and was transferred to the TDRL, his disabilities were considered to be temporary. Accordingly, he was REFRAD and was properly issued a DD Form 214 indicating "Disability, Temporary."
3. At the time the applicant was removed from the TDRL and was retired by reason of permanent disability, he was not on active duty and thus was not entitled to receive another DD Form 214 or to have his previous DD Form 214 amended to reflect subsequent actions that occurred after his REFRAD.
4. Accordingly, there is no basis to grant the applicant's requested relief. His orders permanently retiring him will serve as the supporting document to establish his permanent retirement.
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) AR20090001118
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ABCMR Record of Proceedings (cont) AR20090001118
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