IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007758 


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 his DD Form 214 (Certificate of Release or Discharge) be changed to show he was retired for disability as a direct result of armed conflict.

2.  The applicant states that in order to receive credit for his military time as a Federal employee, his DD Form 214 must show his retirement was for a disability that was the direct result of armed conflict.  As a 100-percent disabled combat veteran he is not receiving credit for his military service and disability.

3.  The applicant provides no supporting documentation.

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 service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.  There are no service or medical documents in the interactive Personnel Electronic Records Management System record for the applicant.

3.  The applicant served on active duty in the Regular Army from 22 July 1986 through 21 July 1990 with transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement) upon completion of his obligated period of active duty.

4.  He was ordered to active on 31 January 1991 in support of Operations Desert Shield/Desert Storm.

5.  On 22 April 1991, the applicant was awarded the Purple Heart for wounds incurred in the Southwest Asia theater on 25 February 1991.

6.  USAR Personnel Center Orders D78-17, dated 23 April 1991, retired the applicant effective 14 May 1991 and placed him on the Temporary Disability Retired List (TDRL) with a 100-percent disability evaluation.

7.  The 1991 DD Form 214 shows the following pertinent information:

	a.  his type of separation was retirement;

	b.  the separation authority was Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(2); and

	c.  his narrative reason for separation was physical disability - temporary.

8.  Other than cited above, there is no available evidence related to his placement on or removal from the TDRL.

9.  USAR Personnel Center Orders D-08-464642, dated 2 August 1994, honorably discharged the applicant from the USAR Control Group (Reinforcement).

10.  Army Regulation 635-40 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.  In part, it provides that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it states that the narrative reason for separation is based on regulatory or other authority for the separation.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases based on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that in order to receive credit for his military time, as a Federal employee, his DD Form 214 must show his retirement was for a disability that was the direct result of armed conflict.  As a 100-percent disabled combat veteran he is not receiving credit for his military service and disability.

2.  The DD Form 214 is a static document.  It is prepared to reflect information about a Soldier's active duty service as of the time of release from active duty.

3.  After having been found unfit for duty, the applicant was retired and placed on the TDRL.  His DD Form 214 shows this fact.

4.  The regulations governing the preparation of a DD Form 214 do not include any provision for the entry the applicant requests.

5.  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 this 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
      N
      
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)                                         AR20100007758



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)