IN THE CASE OF:
BOARD DATE: 08 June 2010
DOCKET NUMBER: AR20090020917
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 he be issued a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows his dates of service from 16 July 1971 to 7 September 1984, and that he was medically retired for a service related disability.
2. The applicant states he requires this correction to apply for Department of Veterans Affairs (VA) benefits.
3. The applicant provides his DD Form 214 and documents pertaining to his processing under the Disability Evaluation System.
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 that he enlisted in the United States Army Reserve (USAR) for assignment to a troop program unit on 1 May 1971.
3. He performed his initial active duty for training from 16 July 1971 to 28 January 1972 and was awarded the military occupational specialty of track vehicle mechanic.
4. While on annual training with his USAR unit, the applicant was hit by falling boards that caused a contusion of his right antus-medial thigh.
5. On 27 March 1984, a Physical Evaluation Board (PEB) determined the applicant was physically unfit due to traumatic rupture of the spleen, status post splenectomy and stiffness, weakness, edema, sympathetic dystrophy and degenerative joint disease, status post dislocation and fracture left tibia and fibula. The PEB recommended that the applicant be rated 40 percent disabled and placed on the Retired List.
6. The recommendation was approved. Accordingly, on 7 September 1984 the applicant was placed on the Retired List with his retired pay based on 6 months and 5 days of service that was calculated under Title 10, U.S. Code, section 1208.
7. Army Regulation 635-5 (Separation Documents), then in effect, establishes the standardized policy for preparing and distributing the DD Form 214. This regulation states that a DD Form 214 will be issued at the time of separation to each member of the Regular Army and each member of the Reserve components and the Army of the United States without component, called or ordered to active duty or active duty for training for a period of 90 days or more.
8. Army Regulation 635-200 (Personnel Separations) defined active duty as full time duty in the active military service of the United States.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 214 records the service he performed while he was on initial active duty for training. The applicant does not contest the dates he performed his initial active duty for training.
2. A DD Form 214 does not record events which transpire after a Soldier's release or discharge from active duty.
3. The applicant was placed on the Retired List for physical unfitness from his status as a Reservist for an injury he incurred performing duties as a Reservist. The applicant had not served in an active duty status over 90 days at the time of his placement on the Retired List.
4. As such, there is no basis for amending the applicant's DD Form 214.
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) AR20090020917
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ABCMR Record of Proceedings (cont) AR20090020917
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