IN THE CASE OF:
BOARD DATE: 16 March 2010
DOCKET NUMBER: AR20090015561
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, that his DD Form 214 (Certificate of Release or Discharge from Active Duty), Item 23 (Type of Separation), be corrected from reading "RETIREMENT" to reading "HONORABLE."
2. The applicant states that when he was physically reevaluated, he was determined not to be eligible to be retired. He adds that he is a Federal employee and his retirement cannot be properly calculated with the current entry in Item 23 of his DD Form 214.
3. The applicant provides his DD Form 214 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 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 applicant's military records show that he enlisted in the Regular Army on 8 October 1986, was awarded the military occupational specialty of fire support specialist, and was promoted to pay grade E-5. He was honorably released from active duty to enter the Reserve Officers Training Corps (ROTC) on 10 August 1989.
3. The applicant was commissioned and entered active duty on 17 December 1993. He was awarded the area of concentration of tactical intelligence officer and was promoted to the rank of captain.
4. The applicant was retired by reason of temporary disability on 31 March 2001 and transferred to the Temporary Disability Retired List (TDRL). The DD Form 214 he was issued, Item 23, Type of Separation, has "RETIREMENT" entered. Item 24, Character of Service, has "HONORABLE" entered.
5. Army Regulation 6355 (Separation Documents) states the only entries allowed for Item 23 of a DD Form 214 are release from active duty, discharge, retirement, release from active duty and order to active duty in another status, release from ADT, release from custody and control of the Army, release from active duty for training, and discharge from the Reserve of the Army and return to the ARNG. It also states a DD Form 214 will not be prepared upon removal from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The applicant was transferred to the TDRL upon his retirement by reason of temporary disability. The TDRL is, as its name denotes, a Retired List. As such, the proper entry in Item 23 of his DD Form 214 is "RETIRED." In addition, the governing regulation prohibits the issuance of a DD Form 214 upon removal from the TDRL.
2. While it is unfortunate if the applicant is having problems getting credit for his military service in his capacity as a Federal employee, his DD Form 214 is properly completed and there is no reason to change it.
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) AR20090015561
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ABCMR Record of Proceedings (cont) AR20090015561
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