IN THE CASE OF:	  

		BOARD DATE:	   22 June 2010

		DOCKET NUMBER:  AR20090018353 


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 that she be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was removed from the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, she was removed from the TDRL and permanently retired, but she did not receive a DD Form 214.

3.  The applicant provides the following documents in support of her application:

	a.  U.S. Army Physical Disability Agency Orders D91-12, dated 9 May 2002;

	b.  DD Form 214, dated 12 August 1991, with an accompanying DD Form 215 (Correction to DD Form 214), dated 22 July 1992;

	c.  Orders 198-070, dated 21 July 1984, prepared by Headquarters, 125th U.S. Army Reserve Command;

	d.  Orders 59-05, dated 9 June 1993, prepared by Headquarters, 125th U.S. Army Reserve Command;

	e. Certificate of Retirement, dated 10 May 2002;

	f.  Physical Evaluation Board (PEB) Proceedings, dated 19 April 2002; and assorted personnel documents.

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.  While a second lieutenant in the Army Reserve, pursuant to a recommendation from a medical evaluation board (MEB) in January 1997, an informal PEB convened on 11 March 1997 and found the applicant unfit to perform her duties.  However, her condition was "found to be neither service incurred nor permanently aggravated by subsequent military service."  The informal PEB recommended separation without disability benefits.  The applicant did not concur and demanded a formal hearing.

3.  The formal PEB convened on 10 December 1997 and reaffirmed the informal board's findings and recommendation.

4.  The applicant appealed the formal PEB decision to the Army's Physical Disability Agency (PDA).  In March 1998, the PDA modified that portion of the formal PEB's findings associated with the applicant's Post-Traumatic Stress Disorder (PTSD) diagnosis and found that a preponderance of evidence established service connection for PTSD.  The applicant was placed on the Temporary Disability Retirement List (TDRL) with a reexamination directed in 
18 months.  The applicant concurred with the findings and recommendation.

5.  On 28 April 1998, the applicant's name was placed on the TDRL.

6.  The date of TDRL reexamination and supporting evidence is not available for review.

7.  On 19 April 2002, a PEB convened and found the applicant's PTSD required psychotropic medication and weekly psychotherapy with two documented hospitalizations.  In addition, she was unemployed, and rarely left her home.  Therefore, her condition was rated as considerable social and industrial impairment.  The PEB found the applicant was physically unfit to reasonably perform the duties required by her previous grade and military specialty.  The PEB recommended a combined rating of 50 percent and permanent disability retirement.

8.  The applicant concurred on 23 April 2002 and waived a formal hearing.
The PEB was approved on 24 April 2002.

9.  The applicant was removed from the TDRL on 9 May 2002 and permanently retired due to a physical disability resulting from a combat related injury on 10 May 2002 by Orders D91-12 prepared by the U.S. Army Physical Disability Agency.

10.  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.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  This regulation prohibits the issuance of a DD Form 214 to Soldiers being removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The DD Form 214 is a record of active duty performed by a Soldier.  During the period the applicant was on the TDRL, she was not performing full time duty in the active service.  Upon removal from the TDRL, the applicant was issued official orders effecting her permanent retirement.

2.  Army Regulation 635-5 specifically prohibits the issuance of a DD Form 214 to Soldiers being removed from the TDRL.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.







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)                                         AR20090018353



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ABCMR Record of Proceedings (cont)                                         AR20090018353



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