IN THE CASE OF:
BOARD DATE: 12 October 2010
DOCKET NUMBER: AR20100010268
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 item 28 (Narrative Reason for Separation) of her
DD Form 214 (Certificate of Release or Discharge from Active Duty) be updated to show her disability is permanent vice temporary.
2. The applicant states her DD Form 214 should be upgraded to show her current status.
3. The applicant provides her DD Form 214 and orders, dated 17 December 2007, directing that she be permanently retired in support of her 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 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 record shows that on 9 July 2002 she was honorably retired, in the rank of captain/0-3, by reason of temporary disability and placed on the Temporary Disability Retired List (TDRL).
3. The DD Form 214 issued to the applicant upon retirement on 9 July 2002, item 25 (Separation Authority), lists Army Regulation 635-40, paragraph
4-24b(2) and item 28 (Narrative Reason for Separation) shows disability, temporary.
4. On 17 December 2007, United States Army Physical Disability Agency (USAPDA) Orders D152-4 directed that the applicant be removed from the TDRL and that she be permanently retired effective 9 July 2007.
5. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. The regulation states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. There are no regulatory provisions for correcting or updating a DD Form 214 based on a change in status subsequent to a members separation from active duty.
DISCUSSION AND CONCLUSIONS:
The applicants contention that her DD Form 214 should be updated to show her permanent disability status has been carefully considered. However, by regulation, the DD Form 214 is a summary of a Soldiers most recent period of active duty service at the time of separation. There are no provisions that allow for updating a DD Form 214 based a change in status subsequent to a members separation from active duty. The applicants permanent disability status is properly established and documented in the USAPDA orders published on
17 December 2007. Therefore, there is an insufficient evidentiary basis to support granting 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) AR20100010268
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ABCMR Record of Proceedings (cont) AR20100010268
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