IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010321 


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, in effect, that item 23 (Type of Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states that:

a. she was retired from active duty and placed on the Temporary Disability
Retired List (TDRL);

b. the type of her separation was classified as “Retirement”;

c.  approximately 1 year after her retirement from active duty following a
review of her case, she was removed from the TDRL; and

d. she never received an amended DD Form 214 that reflected the change in
her separation classification.

3.  The applicant provides a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) and an Election to Formal PEB Proceedings 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 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 she enlisted in the Regular Army on 30 November 1989.  She and was trained in and awarded military occupational specialty 98C (Signals Intelligence Analyst).

3.  On 28 October 1991, the United States Total Army Personnel Command, Alexandria, Virginia, issued Orders Number D216-18.  This order directed the applicant’s separation because of physical disability on 18 November 1991 and placement on the TDRL on 19 November 1991 based on an 80-percent disability rating.

4.  On 18 November 1991, the applicant was honorably retired from active duty after completing 1 year, 11 months, and 19 days of creditable active military service.  The DD Form 214 issued to her at that time confirms she was retired under the provisions of paragraph 4-24b(2), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of physical disability, temporary.  Item 23 contains the entry "retirement" to identify the type of separation she received.

5.  On 2 February 1993, a PEB at Walter Reed Army Medical Center reviewed the applicant’s recent periodic medical examinations and medical records and found that she was physically unfit and recommended she receive a combined rating of 10 percent (%). The PEB further recommended the applicant be separated from service with severance pay.

6.  On 11 March 1993, the United States Total Army Personnel Command issued Orders Number D46-22 which directed the applicant’s removal from the TDRL on 11 March 1993 based on her 10% disability rating.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  Chapter 2 provides guidance on preparing the DD Form 214 and states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.  Paragraph 2-6 contains guidance on alterations and corrections to the DD Form 214.  There are no regulatory provisions that allow for a changing or altering the DD Form 214 to document events that occur subsequent to a member's release from active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends Item 23 of her DD Form 214 should be corrected.

2.  By regulation, the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  There are no regulatory provisions that allow for changing or altering the DD Form 214 to document events that occur subsequent to a member's release from active duty.

3.  The evidence of record confirms that the applicant received an 80-percent disability rating and was honorably separated for the purpose of retirement on 18 November 1991 by reason of a temporary disability and placed on the TDRL.  As a result, the authority and reason for her separation and the type of separation reflected on the DD Form 214 accurately reflect the conditions that existed at the time of the applicant's separation from active duty and remain valid.

4.  As a result, it would not be appropriate to change the applicant's DD Form 214 to reflect the applicant's subsequent removal from the TDRL based on her 10-percent disability rating with authorization for severance pay.

5.  In view of the forgoing, the applicant’s request should be denied.

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)                                         AR20100010321





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ABCMR Record of Proceedings (cont)                                         AR20100010321



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