IN THE CASE OF:
BOARD DATE: 29 October 2009
DOCKET NUMBER: AR20090009537
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 correction of his records to show that he retired on
27 March 2001.
2. The applicant states the orders that removed him from the temporary disability retired list (TDRL) on 27 March 2001 and permanently retired him on 28 March 2001 were not sent to the proper agency. He adds that the Department of Veterans Affairs (VA) does not recognize his time on the TDRL as creditable service.
3. The applicant provides copies of a U.S. Army Physical Disability Agency (USAPDA) memorandum, dated 27 March 2001, and Headquarters, USAPDA, Washington, DC, Orders D59-11, dated 27 March 2001, 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 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. The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program for a period of 6 years on 3 May 1978.
3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty in the Regular Army (RA) on 6 June 1978, was honorably released from active duty (REFRAD) on 3 June 1981, and transferred to the USAR to complete his remaining military service obligation. At the time he had completed 2 years, 11 months, and 28 days of net active service this period and 1 month and 3 days of total prior inactive service.
4. On 9 December 1982, the applicant enlisted in the USAR Delayed Entry Program and enlisted in the RA on 12 April 1983.
5. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows that a PEB convened on 14 March 1996, found the applicant physically unfit, recommended a combined rating of 30 percent, and placed him on the TDRL. This document also shows the applicant was advised of the findings and recommendations of the PEB, that he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, that he concurred with the PEB findings and recommendations, and he waived a formal hearing of his case.
6. Headquarters, U.S. Army Garrison, Fort Belvoir, VA, Orders 117-0002, dated 26 April 1996, show the applicant was released from assignment and duty on 20 July 1996 because of physical disability and placed on the TDRL on 21 July 1996. These orders also show the applicant had completed 16 years, 3 months, and 7 days of creditable service for disability retirement under Title 10, U.S. Code, section 1405, and 18 years, 2 months, and 18 days of creditable service for basic pay.
7. A DD Form 214 shows the applicant entered this period of active duty on 14 April 1980 [sic] and that he was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), with a narrative reason for separation of "disability, temporary." This document shows he had completed 16 years, 3 months, and 7 days of net active service this period; 2 years, 11 months, and 28 days of total prior active service; and 1 year, 11 months, and 11 days of total prior inactive service.
8. A Walter Reed Army Medical Center (WRAMC), Washington, DC, memorandum, dated 21 November 2000, subject: Notification of TDRL Reevaluation, shows the applicant was provided a copy of the report of his examination. In addition, a Postal Service Form 3811 (Domestic Return Receipt) shows the applicant signed for the document. These two documents show the applicant's address as XXXXX Nickelson Drive, Woodbridge, VA 22193.
9. A U.S. Army Physical Evaluation Board, WRAMC, Washington, DC, memorandum, dated 5 January 2001, shows the applicant was notified that the PEB recommended that his name be removed from the TDRL. He was provided a copy of the PEB Proceedings for review and his decision. This document also shows the applicant's address as XXXXX Nickelson Drive, Woodbridge, VA 22193.
10. A DA Form 199 shows that a PEB convened on 5 January 2001, the PEB found the applicant physically unfit, recommended a combined rating of 30 percent, and recommended that the applicant's disposition should be permanent disability retirement. This document also shows the applicant was advised of the findings and recommendations of the PEB, that he received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, that he concurred with the PEB findings and recommendations, and that he waived a formal hearing of his case. This document further shows the applicant placed his signature on the DA Form 199 on 21 March 2001.
11. Headquarters, USAPDA, WRAMC, Washington, DC, Orders D59-11, dated 27 March 2001, show the applicant was removed from the TDRL on 27 March 2001 and permanently retired on 28 March 2001. These orders show that they were addressed to the applicant at his address of record (i.e., ##### Nickelson Drive, Woodbridge, VA 22193), and distributed to the Defense Finance and Accounting Service (DFAS), Cleveland, OH and Commander, WRAMC, Washington, DC.
12. The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments) that he served on active duty in the RA from 6 June 1978 through 3 June 1981, he enlisted in the USAR DEP on 9 December 1982, he entered active duty in the RA on 12 April 1983, and he retired by reason of temporary disability on 20 July 1996.
13. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
14. Title 10. U.S. Code, section 1202, provides that upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 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.
15. The Department of Defense (DOD) Finance Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 1 (Basic Pay), states that creditable service periods for basic pay include active or inactive service in any of the military components without restriction. Time spent on the TDRL is not included as a creditable service period.
16. The DODFMR, Volume 7B (Military Pay Policy and Procedures - Retired Pay), chapter 11 (Removal from the Temporary Disability Retired List), provides:
a. a member on the TDRL is given a physical examination at least once every 18 months. The Secretary of the Military Department concerned may make a final determination as to the member's disability at that time or at the end of the 5-year TDRL period; and
b. if, as a result of the physical examination or determination by the Secretary of the Military Department concerned, the member's physical disability is determined to be permanent and is at least 30 percent under the standard schedule of rating disabilities in use by the VA at the time of the determination, then his or her name is removed from the TDRL and he or she is retired by reason of permanent physical disability.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that his records should be corrected to show he retired from active duty on 27 March 2001.
2. Records show a PEB found the applicant physically unfit with a combined rating of 30 percent and recommended his placement on the TDRL. Records also show the applicant concurred with the findings and recommendations of the PEB and he was placed on the TDRL effective 21 July 1996.
3. The records show a PEB found the applicant physically unfit with a combined rating of 30 percent and recommended his permanent disability retirement. The records also show the applicant concurred with the findings and recommendations of the PEB, that he was removed from the TDRL on 27 March 2001, and that he was permanently retired effective 28 March 2001.
4. The applicant's permanent retirement under the provisions of Army Regulation 635-40 based on physical disability was administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.
5. The records show the orders that permanently retired the applicant were sent to the applicant, DFAS, and WRAMC. There is no evidence and the applicant provides insufficient evidence to show the orders were not sent to the proper agency.
6. The DOD regulatory guidance shows that time served on the TDRL is not creditable service for basic pay. Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show creditable service from 21 July 1996 through 27 March 2001 for the period that he was on the TDRL.
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) AR20090009537
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ABCMR Record of Proceedings (cont) AR20090009537
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