IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090012253 


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, correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 September 2004 to show the reason for his separation was permanent retirement.  He also requests that the Army Commendation Medal (ARCOM) be added to item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the same DD Form 214.

2.  The applicant states, in effect, that he went from the Temporary Disability Retired List (TDRL) to permanently retired, which should be reflected in item 28 of his DD Form 214.  He also states that he earned the ARCOM while serving on active duty and that this award should be included in the list of awards contained in item 13 of his DD Form 214.

3.  The applicant provides a copy of his DD Form 214; an ARCOM certificate, dated 1 May 2007; and U.S. Army Physical Disability Agency (USAPDA) Orders D344-10, dated 9 December 2008, 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's record shows that on 10 February 2003, while a member of the Army National Guard (ARNG), he was ordered to active duty in support of Operation Enduring Freedom (OEF).  He served on active duty until 
24 September 2004, at which time he was retired under the provisions of paragraph 4-24b [2], Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of temporary disability, and placed on the TDRL.

3.  The DD Form 214 issued to the applicant upon his separation from active duty on 24 September 2004, and placement on the TDRL, shows he completed 
1 year, 7 months, and 15 days of active military service during the period covered by the DD Form 214 (10 February 2003 - 24 September 2004).  Item 13 shows he earned the following awards:  Navy Good Conduct Medal, Army Reserve Components Achievement Medal, National Defense Service Medal (2nd Award), Global War on Terrorism Expeditionary Medal, Army Service Ribbon, Armed Forces Reserve Medal with "M" (Mobilization) Device, and Navy and Marine Corps Overseas Service Ribbon (3rd Award).

4.  The applicant's Official Military Personnel File (OMPF) contains a DA Form 638 (Recommendation for Award), dated 19 March 2007.  This document shows he was recommended for and awarded the ARCOM for his outstanding service during the period 10 February 2003 through 27 May 2004, while deployed with the 1175th Transportation Company in support of Operation Iraqi Freedom (OIF) and OEF.  This award was authorized and announced in Headquarters, 
230th Sustainment Brigade, Permanent Order (PO) Number 121-045, dated
1 May 2007.

5.  USAPDA Orders D344-10 directed the applicant's removal from the TDRL and placement on the Retired List by reason of permanent disability on
10 December 2008, with a 60 percent disability percentage rating.

6.  The applicant provides of copy of a certificate, which shows he was awarded the ARCOM for exceptionally outstanding service while deployed in support of Operation Iraqi Freedom and Operation Enduring Freedom during the period 
10 February 2003 through 27 May 2004, and that this award was authorized and announced in official orders (PO 121-045).

7.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and 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.

8.  Appendix C-10 of the same regulation contains guidance on the TDRL.  It states, in pertinent part, that TDRL status is authorized for a maximum of 
5 years, but permanent disposition may be made at an earlier date.  It further states that periodic medical examinations are required at least every 18 months and each periodic examination report is referred to a PEB for a determination as to whether the Soldier is to be retained on, or removed from, the TDRL.  Final disposition may result in permanent retirement with the same, greater, or lesser disability percentage rating; separation with severance pay (if less than 20 years service); or a finding of physical fitness. 

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on preparation of the DD Form 214 and it states, in pertinent part, that the DD Form 214 is a summary of a Soldier's 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.  There is no provision for changing the DD Form 214 to document changes in status that occur subsequent to a member's separation from active duty.  Further, a DD Form 214 will not be prepared for a Soldier removed from the TDRL.  Movement from the TDRL to the Retired List based on permanent disability is accomplished through the publication of orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the ARCOM he received should be added to item 13 of his final DD Form 214 has been carefully considered and found to have merit.

2.  The applicant's OMPF contains a DA Form 638 that confirms the applicant was awarded the ARCOM for outstanding service during the period 10 February 
2003 through 27 May 2004, and that this award was authorized and announced in official orders (PO 121-045).  As a result, it would be appropriate to add this award to item 13 of his DD Form 214 at this time.

3.  The applicant's contention that Item 28 of his DD Form 214 should be corrected to show he was permanently retired subsequent to his separation from active duty was also carefully considered.  However, by regulation, the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and is issued upon a member's separation from active duty.  There are no regulatory provisions that provide for correcting or changing the DD Form 214 to document status changes that occur subsequent to a member's separation from active duty.

4.  In this case, the applicant was properly issued a DD Form 214 on 
24 September 2004, which is the date he was retired by reason of temporary disability and placed on the TDRL.  His subsequent removal from the TDRL and placement on the Retired List by reason of permanent disability was properly accomplished through the publication of orders.  As a result, there is no error or injustice related to the narrative reason entered in Item 28 of his DD Form 214 for the period ending 24 September 2004 and it would not be appropriate to grant this portion of the applicant's requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

   a.  adding to item 13 of his DD Form 214 for the period ending 24 September 2004 the Army Commendation Medal; and

   b.  issuing him a correction to his DD Form 214 that reflects this change.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to changing the entry DISABILITY, TEMPORARY" in item 28 of his DD Form 214.



      __________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)                                         AR20090012253



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ABCMR Record of Proceedings (cont)                                         AR20090012253



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