IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090016689 


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 date of discharge from 11 November 2000 [sic] (28 November 2000) to 8 November 2002.

2.  The applicant states that he was released from his assignment at Fort Drum, NY, in November 2000 and he was placed on the Temporary Disability Retired List (TDRL) so he could go to school while in an active duty status.  He was then released from the TDRL on 8 November 2002.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 November 2000, and a copy of Orders D218-6 issued by the U.S. Army Physical Disability Agency (USAPDA) on 8 November 2002 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 records show he enlisted in the Regular Army for a period of 6 years on 19 November 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  The highest rank he attained during his military service was private first class/E-3.  He was assigned to Fort Drum, NY.

3.  On 4 December 1999, the applicant was admitted to an Army Hospital at Fort Drum, NY, with a cold weather injury to his hands and feet that occurred during a field training exercise.  A subsequent medical examination warranted his entry into the Physical Disability Evaluation System.

4.  On 2 August 2000, a medical evaluation board (MEBD) convened at Fort Drum, NY, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD determined the applicant suffered from chronic bilateral hand and forearm pain.  The MEBD recommended his referral to a physical evaluation board (PEB).  The applicant agreed with MEBD's findings and recommendations and indicated he did not desire to continue on active duty.

5.  On 18 October 2000, a formal PEB convened at Walter Reed Army Medical Center (WRAMC) to consider the applicant's case.  The PEB found that he was physically unfit to perform duties in his grade and specialty by reason of chronic bilateral hand and forearm pain.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and recommended a combined physical disability rating of 30 percent and placement on the TDRL with reexamination in April 2002.  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case.

6.  On 28 November 2000, the applicant was honorably retired and was placed on the TDRL.  The DD Form 214 he was issued shows he completed 3 years and 10 days of creditable military service.  Item 23 (Type of Separation) of this form shows the entry "retirement," item 25 (Separation Authority) shows the entry "Army Regulation 635-40, paragraph 4-24b(2)," and item 28 (Narrative Reason for Separation) shows the entry "disability-temporary."

7.  On 3 October 2002, a TDRL PEB convened at WRAMC and found the applicant's condition did not improve to the extent that he was considered fit for duty and that he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his condition at the time was considered sufficiently stable for final adjudication.  He was rated at 10 percent under the VASRD code applicable to his medical condition.   Accordingly, the PEB recommended the applicant's separation with entitlement to severance pay.

8.  The applicant was informed of the PEB's findings and recommendations on two occasions but failed to make an election.  Accordingly, on 8 November 2002, the USAPDA published Orders D218-6 removing the applicant from the TDRL and discharging him from the Army effective 8 November 2002 with entitlement to severance pay.  He was also issued an Honorable Discharge Certificate.

9.  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.

10.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that item 12 shows the record of service and that extreme care is used when completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Item 12a shows the beginning date of the continuous period of active duty for issuance of the DD Form 214 for which a DD Form 214 was not previously issued and item 12b shows the Soldier's transition date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends or is extended for make-up of lost time, or retained on active duty for the convenience of the government.  Furthermore, paragraph 2-1(b)3 provides that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation date on his DD Form 214 should be corrected to show he was separated on 8 November 2002.

2.  The evidence of record confirms that the applicant enlisted on 19 November 1997 and was retired on 28 November 2000 by reason of temporary physical disability.  There is no evidence that the applicant performed any period of active duty that would have warranted the issuance of a DD Form 214 subsequent to his retirement on 28 November 2000.

3.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty of more than 90 days to include attendance at basic and advanced training and is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The applicant's removal from the TDRL and subsequent discharge with entitlement to severance pay has no impact on the DD Form 214 he was previously issued.  Furthermore, there is no provision or regulatory requirement to issue a new DD Form 214 when a Soldier is removed from the TDRL.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090016689



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ABCMR Record of Proceedings (cont)                                         AR20090016689



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