BOARD DATE: 6 August 2009
DOCKET NUMBER: AR20090004462
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 he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) removing him from the Temporary Disability Retired List (TDRL) effective 9 January 2002.
2. The applicant states, in effect, that he officially retired from the military on
9 January 2002 as evidenced by his Certificate of Retirement. He contends that his DD Form 214 was a temporary retirement and later when he did not get better he was retired on 9 January 2002.
3. The applicant provides a Certificate of Retirement and a copy of his DD Form 214 in support of his 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 applicant enlisted in the Regular Army on 14 October 1997 and served as a chaplain assistant. On 18 July 2000, the applicant was released from active duty and placed on the TDRL the following day. Apparently, on 9 January 2002, the applicant was removed from the TDRL.
3. Item 12b (Separation Date This Period) on the applicant's DD Form 214 shows the entry, "2000 07 18" [18 July 2000].
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 applicant was placed on the TDRL effective 19 July 2000 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) AR20090004462
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ABCMR Record of Proceedings (cont) AR20090004462
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