IN THE CASE OF:	

		BOARD DATE:	       25 AUGUST 2009

		DOCKET NUMBER:  AR20090005739 


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 1976 DD Form 214 (Report of Separation from Active Duty) be corrected to show that his type of separation was not "retirement."

2.  The applicant states he did not retire from the Army and is not receiving any retirement funds.  He states his DD Form 214 shows that he retired.  He states that he is attempting to retire from the U.S. Postal Service and they are denying his military service time because his DD Form 214 indicates he retired from the military.  He states that he is collecting a service-connected disability allotment.

3.  The applicant provides a copy of his 1973 and 1976 DD Forms 214, a copy of a U.S. Postal Service Notification of Personnel Action indicating his Retirement Computation Date and his Leave Computation Date were "adjusted due to erroneous credit given for military service time."  The document notes the "employee is retired military."

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Records available to the Board indicate the applicant entered active duty as a Regular Army enlisted Soldier on 22 October 1970.  He was discharged for the purpose of immediate reenlistment on 23 May 1973.  On 24 May 1973 the applicant executed a 6-year reenlistment contract.

3.  In January 1976 an informal physical evaluation board (PEB) found the applicant unfit to perform his duties due to a chronic disease which had been treated surgically and was healing but which had not fully stabilized.  As such the PEB recommended placement on the temporary disability retired list (TDRL) until his wrist was fully stabilized and that his medical condition be reevaluated in January 1977.  The applicant concurred and waived his right to a formal hearing.

4.  On 9 March 1976 the applicant was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations).  The type of separation was recorded as "retirement (TC 379)" in item 9a of his 1976 DD Form 214.  TC refers to the transaction code associated with the type of separation.  The authority for the applicant's separation was recorded as "Title 10, U.S. Code, Section 1202, Army Regulation 635-200."

5.  In January 1977 an informal PEB concluded the applicant's wrist condition had improved to the extent that he was considered fit for duty.  The applicant nonconcurred with the informal PEB and requested a formal hearing.  A formal PEB convened in March 1977 and also concluded the applicant was then fit for duty and his name was removed from the TDRL effective 30 April 1977.  The applicant was provided an opportunity to reenlist and return to active duty within 90 days following his removal from the TDRL.  He did not exercise that right.

6.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated that item 9a of the DD Form 214 would reflect the applicable term associated with various TCs.  In the applicant's case, TC 379 was associated with retirement as opposed to relief from active duty, discharge, dismissal, etc.  This same regulation stated that a DD Form 214 would be issued to all personnel at the time of retirement, discharge, or release from active duty including each member separated for physical disability.  A DD Form 214 would not be issued for personnel being removed from the TDRL.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that a member who is unfit to perform the duties of his office, grade, rank, or rating will be placed on the TDRL if his disability has not stabilized at the time he is retired.  The TDRL will list names of all members temporarily retired.

8.  Title 10, U.S. Code, section 1202, states, in effect, upon a determination by the Secretary concerned that a member described in section 1201(c) [a member of a regular component of the Armed Forces entitled to basic pay] of this title would be qualified for retirement under section 1201 [unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability] of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.

DISCUSSION AND CONCLUSIONS:

1.  An individual may be retired by reason of physical disability or for length of service.  In the applicant's case he was retired by reason of physical disability, albeit temporarily, in 1976 when it was determined that his medical condition rendered him unfit to continue his military service.  He was not retired for length of service.  Had the applicant been retired for length of service a different section of the U.S. Code would have been recorded as the authority for his separation on his DD Form 214.  As such, the applicant's DD Form 214 was issued reflecting the type of separation from active duty, which was retirement.

2.  The fact that the retirement terminology may affect how officials currently overseeing his personnel status interpreted his military service does not serve as a basis to alter a correctly prepared DD Form 214.  However, a copy of the letter and the orders removing the applicant from the TDRL will be provided to him.  He should show those documents to his personnel office to verify that he was removed from an Army retired status effective 30 April 1977.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____XXX____  ____XXX____  ___XXX_____  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)                                         AR20090005739



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ABCMR Record of Proceedings (cont)                                         AR20090005739



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