IN THE CASE OF:
BOARD DATE: 14 MAY 2009
DOCKET NUMBER: AR20090002750
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 reflect that he was retired by reason of permanent disability.
2. The applicant states that he was originally retired by reason of temporary disability and placed on the Temporary Disability Retired List (TDRL) at the time his DD Form 214 was issued. However, he has subsequently been removed from the TDRL and permanently retired. Accordingly, he desires to have his DD Form 214 corrected to reflect that he was retired by reason of permanent disability.
3. The applicant provides a copy of his DD Form 214 and a copy of his orders removing him from the TDRL and retiring him for permanent disability.
CONSIDERATION OF EVIDENCE:
1. On 30 January 2004, while serving on active duty as an Alabama Army National Guard major, the applicant was honorably released from active duty and was transferred to the TDRL on 31 January 2004, under the provisions of Army Regulation 635-40 due to disability, temporary. He was assigned a 100% disability rating.
2. On 10 July 2008, a Physical Evaluation Board (PEB) convened at Fort Sam Houston, Texas to reevaluate the applicant's condition and determined that he was physically unfit and recommended that he be permanently retired with a 100% disability rating. The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case on 14 July 2008.
3. Accordingly, he was removed from the TDRL on 22 July 2008 and he was permanently retired on 23 July 2008 with a 100% disability rating.
4. 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 Soldiers 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 Soldiers service. A DD Form 214 will NOT be prepared for Soldiers removed from the TDRL or subsequently altered to reflect an individual's removal from the TDRL.
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 transferred to the TDRL, his disabilities were considered to be temporary. Accordingly, he was REFRAD and he was issued a DD Form 214.
3. At the time the applicant was removed from the TDRL and was honorably discharged by reason of permanent physical disability with severance pay, he was not on active duty and thus he was not entitled to receive another DD Form 214 or to have his previous DD Form 214 altered to reflect subsequent actions that occurred after his REFRAD. Accordingly, there is no basis to grant the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X_____ ___X_____ __X______ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our country. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _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) AR20090002750
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