IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090017967 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his retirement date as 24 May 1999 instead of 24 October 1994.

2.  The applicant states that his retirement date should be changed because when he signed the discharge papers he was not mentally capable of doing that and he was placed on the Temporary Disability Retired List (TDRL).  The medication he was given changed everything in his way of thinking.  Since he could not function, he was medically evacuated from Germany to Fort Gordon, GA.  He was given the wrong medication "Haloperidol," which is used for the treatment of Schizophrenia and which side effects left him with permanent hand tremors.

3.  The applicant provides copies of his Meritorious Service Medal certificate, permanent change of station orders, TDRL orders, 1994 DD Form 214, permanent retirement orders and certificate, and information on the drug "Haloperidol."

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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 15 July 1976.  He was discharged from the USAR DEP on 2 September 1976 and he enlisted in the Regular Army in pay grade E-1 on 3 September 1976.  He served continuously on active duty through several reenlistments.  He served in Germany from 19 February 1993 until his assignment to the Medical Holding Company at Fort Gordon on 15 March 1994.  He was issued U.S. Total Army Personnel Command, Physical Disability Branch, Alexandria, VA Orders D145-1, dated 29 July 1994, releasing him from the Medical Holding Company on 24 October 1994 and placing him on the TDRL effective 25 October 1994.  His records are void of any documentation showing the reason(s) for his assignment in the Medical Holding Company and/or placement on the TDRL.

3.  He was honorably retired in the rank/grade of master sergeant (MSG)/E-8 under the provisions of Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability based on a final decision by the U.S. Physical Disability Agency (USAPDA) on 24 October 1994 and placed on the TDRL effective 25 October 1994.  His DD Form 214 shows he was credited with 18 years, 1 month, and 22 days of net active service.

4.  U.S. Total Army Personnel Command, Physical Disability Branch, Alexandria, VA issued Orders D98-16, dated 24 May 1999, removing the applicant from the TDRL because of permanent physical disability and permanently retiring him effective 25 May 1999 in his current grate of rank (MSG/E-8).  His percentage of disability was determined to be 50 percent.  He was also issued a Certificate of Retirement, dated 25 May 1999.  His records are void of any documentation showing his concurrence or non-concurrence with his removal from the TDRL.

5.  He submitted a copy of information from the Walgreens Pharmacy website on the drug "Haloperidol."

6.  Army Regulation 635-40, then in effect, set forth the basic authority for the evaluation of physical fitness of Soldiers who could be unfit to perform their military duties because of a physical disability.  Paragraph 4-24b(2) provided that Soldiers placed on the TDRL would be issued retirement orders or other disposition instructions.  Paragraph 7-2 specified that a Soldier’s name may be placed on the TDRL when it is determined that the Soldier was qualified for disability retirement, but his/her disability was determined not to be of a permanent nature and stable.  A Soldier would be removed from the TDRL on the fifth anniversary of the date the Soldier was placed on the TDRL or sooner on the approved recommendation of a physical evaluation board (PEB), if:

   a.  the Soldier is unfit,

   b.  the disability causing the Soldier to be placed on the TDRL had become permanent, or

   c.  the disability was rated at 30 percent or more or the Soldier has at least 20 years of active Federal service.

7.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 will not be prepared for members being removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his retirement date should be changed on his DD Form 214 has been noted.  However, the evidence of record shows he was 
placed on the TDRL on 25 October 1994 due to a physical disability incurred while entitled to basic pay and under which conditions permitted his placement on the TDRL.  It appears that his disability was determined to be permanent during the fifth anniversary of his placement on the TDRL.  Therefore, appropriate orders were issued removing him from the TDRL on 24 May 1999 and permanently retiring him on 25 May 1999, which did not justify issuance of a new DD Form 214.

2.  There is no evidence of record and he has failed to show with the evidence submitted that he was improperly or erroneously placed and removed from the TDRL and permanently retired on 25 May 1999.  The evidence only shows he incurred a physical disability determined not to be of a permanent nature and stable which permitted his placement on the TDRL on 25 October 1994.  He was removed from the TDRL on 24 May 1999 and permanently retired.  He has provided no evidence that he was not mentally capable at the time of his placement on the TDRL in 1994 and permanent retirement in 1999.  In the absence of evidence to the contrary, Government regularity is presumed in his permanent retirement process.

3.  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 this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090017967



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ABCMR Record of Proceedings (cont)                                         AR20090017967



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