IN THE CASE OF:	  

		BOARD DATE:	      23 JUNE 2009

		DOCKET NUMBER:  AR20090001990 


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, that item 23 (Type of Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show "discharge" instead of "retirement."

2.  The applicant states, in effect, that she was placed on the Temporary Disability Retired List (TDRL) at the time of her separation due to a temporary disability; however, she has since been removed from the TDRL and discharged with severance pay and as a result her DD Form 214 should be corrected to reflect this change.  She states she is a civilian employee and is unable to obtain the appropriate amount of service credit for retirement and leave purposes because her DD Form 214 shows that she is retired from the Army.

3.  The applicant provides a copy of her DD Form 214 in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show she enlisted in the Regular Army and entered active duty on 30 November 1989, and was trained in and awarded military occupational specialty 72G (Automatic Data Telecommunications Center Operator).

2.  On 5 March 2002, Headquarters, Fort Myer Military Community, issued Orders 064-0002.  These orders directed the applicant’s separation because of physical disability on 30 May 2001 and her placement on the TDRL on 31 May 2001 based on a 30-percent disability rating.

3.  On 30 May 2001, the applicant was honorably separated after completing 11 years, 6 months, and 1 day of creditable active military service.  The DD Form 214 issued to her at that time confirms she was separated under the provisions of paragraph 4-24b(2), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability, temporary.  Item 23 contains the entry "retirement" to identify the type of separation she received.

4.  On 26 January 2006, a physical evaluation board (PEB) at Walter Reed Army Medical Center reviewed the applicant’s recent periodic medical examinations and medical records and recommended her name be removed from the TDRL.  The DA Form 199 (PEB Proceedings) shows the applicant's combined disability rating was changed to 20 percent.

5.  On 13 February 2006, the United States Army Physical Disability Agency (USAPDA) issued Orders D044-05 which directed the applicant’s removal from the TDRL and discharge with severance pay based on a disability rating of 20 percent effective 13 February 2006.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  Chapter 2 provides guidance on preparing the DD Form 214 and states, in pertinent part, that the DD Form 214 is a summary of a Soldier'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 Soldier's service.  The instructions for item 23 state to enter the appropriate type of separation.  Paragraph 2-6 contains guidance on alterations and corrections to the DD Form 214.  There are no regulatory provisions that allow for a changing or altering the DD Form 214 to document events that occur subsequent to a member's REFRAD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her DD Form 214 should be corrected to reflect that she was discharged instead of retired was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the DD Form 214 is a summary of a Soldier'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 Soldier's service.  There are no regulatory provisions that allow for a changing or altering the DD Form 214 to document events that occur subsequent to a member's REFRAD.

3.  The evidence of record confirms that the applicant received a 30-percent disability rating and that she was honorably separated for the purpose of retirement on 30 May 2001 by reason of a temporary disability and placed on the TDRL as evidenced by PEB proceedings and separation orders on file in her official military personnel file.  As a result, the authority and reason for his separation and the type of separation reflected on this DD Form 214 accurately reflect the conditions that existed at the time of the applicant's separation from active duty and remain valid.  

4.  As a result, it would not be appropriate to correct the applicant's DD Form 214 to reflect the applicant's subsequent removal from the TDRL and a 20-percent disability rating with entitlement to severance pay which is properly documented in the USAPDA orders that were published authorizing and directing this action.

5.  The applicant is advised that service and leave credit granted by her civilian employer are not within the purview of this Board; however, it appears that if she is granted these benefits based on her military service record, the orders issued by the USAPDA on 13 February 2006 in concert with her DD Form 214 and this Record of Proceedings should be sufficient to document her initial temporary retirement and subsequent discharge.

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)                                         AR20090001990



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ABCMR Record of Proceedings (cont)                                         AR20090001990



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