IN THE CASE OF:
BOARD DATE: 4 March 2010
DOCKET NUMBER: AR20090013746
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, a new DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged for retirement, permanent disability.
2. The applicant states, that he was placed on the Temporary Disability Retirement List (TDRL) with a permanent disability and then retired. In effect, he discovered the error on 13 April 2009, when he attempted to obtain a new ID (identification card).
3. In support of his application, the applicant provides copies of his DD Form 214 and a letter from the Department of Veterans Affairs.
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 applicants military records show he enlisted in the Regular Army in pay grade E-1 on 11 August 1986. He completed training was assigned military occupational specialty 11B (Infantryman).
3. The applicant was honorably retired in pay grade E-6 on 17 April 1996, under the provisions of Army Regulation 635-40, paragraph 4-24(b)2, for temporary disability. He was credited with completing 9 years, 4 months, and 17 days of net active service.
4. On 14 July 2000, a Physical Evaluation Board (PEB) convened based on a review of a TDRL examination to consider the applicant's disability of Bipolar I Disorder, Mild. The PEB found that he remained unfit to reasonably perform the duties required by his previous grade and MOS. The PEB found the applicant physically unfit and recommended a combined rating of 10 percent and separation with severance pay. On 28 July 2000, he concurred with the PEB and waived his right to a formal hearing.
5. Orders D157-11, dated 14 August 2000, were issued by the U.S. Army Physical Disability Agency removing the applicant from the TDRL and discharging him from the service effective 14 August 2000 due to a permanent physical disability rated at 10 percent disabling with severance pay.
6. Army Regulation 635-5 (Personnel Separations Separation Documents), in effect at the time, specified in Paragraph 2-1b(3) specified that a DD Form 214 would not be prepared for Soldiers removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows the applicant was retired from active duty for temporary disability, on 17 April 1996, issued a DD Form 214, and placed on the TDRL. He was removed from the TDRL effective 14 August 2000 by Orders D157-11. The applicants contention that he was retired has been noted; however, the evidence shows he was not retired from active duty on 14 August 2000. Therefore, he is not entitled to the issuance of a DD Form 214. He was properly issued orders discharging him from the service at that time due to a permanent physical disability.
2. 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
____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) AR20090013746
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