BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009056 


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 date of separation from active duty be corrected to include his time spent on the Temporary Disability Retired List (TDRL) and that this period of service be added to his time served.

2.  The applicant states he spoke with a sergeant major who told him the time spent on the TDRL should count towards retirement and he was not officially retired until 14 August 2008.

3.  The applicant provides copies of the 14 August 2008 Army Physical Disability Agency Orders D227-14 and a Certificate of Retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 May 1986.  His career progressed normally and he was promoted to staff sergeant on 1 January 2000. 

2.  Headquarters, Joint Readiness Training Center and Fort Polk 
Orders 203-0360, dated 21 July 2004, released the applicant from active duty and placed him on the TDRL due to physical disability with a 40 percent disability rating.  These orders show his effective date of retirement as 18 August 2004 and he was placed on the retired list on 19 August 2004.

3.  The DD Form 214 the applicant was issued on 18 August 2004 shows he had completed 18 years, 2 months, and 20 days of creditable active service with no prior active or inactive service.  The type of separation shown on this form is "Retirement" with a narrative reason for separation of "Disability, Temporary." 

4.  The applicant remained on the TDRL for 4 years, undergoing periodic evaluations.  

5.  U. S. Army Physical Disability Agency Orders D227-14, dated 14 August 2008, removed the applicant from the TDRL and permanently retired him with a 50 percent disability rating.  These orders show the disability was not the result of a combat injury.

6.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

7.  Army Regulation 40-501 (Standards of Medical Fitness) states that a release from active military service because disability includes both temporary and permanent disability retirement.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  It provides the following:

	a.  the TDRL is used in the nature of a "pending list".  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability; 

	b.  a Soldier is placed on the TDRL if fully qualified for permanent retirement except that the disability "may be permanent."  Based on accepted medical principles, a disability will be considered as "may be permanent" if it has not stabilized, and one of the following occurs: 1) the Soldier may recover so as to be fit for duty; or 2) the defect is expected to change in severity within the next 
5 years so as to change the compensable percentage rating; and 

	c.  a Soldier is removed from the TDRL no later than the fifth anniversary of the date the Soldier's name was placed on the list.  A Soldier will be transferred to the Permanent Retired List if their condition remains unchanged or worsens; will be separated with severance pay if they have less than 20 years of active service and their condition is found to be less than 30 percent disabling; or offered the opportunity to return to active duty if found fit for duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told the time spent on the TDRL count towards retirement because he was not really officially retired.

2.  The TDRL is by its very name a retirement.  By placing a Soldier on the TDRL they are in fact being retired.  

3.  The applicant was officially retired effective 18 August 2004 when he was placed on the TDRL.  If his condition had improved to the point that he was no longer considered unfit for duty he would have been offered the opportunity to return to active duty.  Since his condition actually worsened he was found to be permanently disabled and transferred to the Permanent Retired List effective 19 August 2008.

4.  Time spent on the TDRL is in a retired status and cannot be added to active duty service time to increase the longevity factor in calculating any retirement benefits or pay.  Unless a Soldier is found fit for duty and returned to an active duty status their longevity factor ends with their placement on the TDRL.  Therefore, no correction is required concerning his total creditable active service 

5.  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.

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)                                         AR20090009056



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ABCMR Record of Proceedings (cont)                                         AR20090009056



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