IN THE CASE OF:
BOARD DATE: 20 January 2011
DOCKET NUMBER: AR20100016219
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, to be processed for placement on the Temporary Disability Retired List (TDRL) or the Permanent Disability Retired List (PDRL) or to be discharged with severance pay.
2. The applicant states, in effect, he should have been separated with severance pay, placed on the TDRL, or placed on the PDRL due to injuries he had when he was released from active duty (REFRAD).
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 was inducted into the Army of the United States on 11 December 1970. He was awarded military occupational specialty 94B (Cook) after completing initial entry training. He was assigned for duty in Vietnam where he served from 6 July 1971 to 4 April 1972.
3. His service medical records are not available for the Board to review.
4. His official military personnel file is void of documentation showing he was injured during his Army service.
5. He was honorably REFRAD on 20 September 1972 after completing 1 year, 9 months, and 10 days of active military service and transferred to the U.S. Army Reserve (USAR) to complete his service obligation. He was honorably discharged from the USAR effective 10 December 1976.
6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 and provides for disposition of the Soldier according to applicable laws and regulations. A member of the Army found to be unfit to perform the duties of his or her office, grade, rank, or rating by reason of physical disability will be eligible for disability evaluation processing and disposition. Options for disposition include discharge, discharge with severance pay, temporary retirement, or permanent retirement.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) states 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicant's request to be processed for placement on the TDRL or the PDRL or to separation with severance pay.
2. The available records do not include documentation showing the applicant incurred a physical disability during his Army service. In the absence of such documentation, there is no basis for evaluating any physical disability he may have incurred. Accordingly, there is no basis for 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 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) AR20100016219
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ABCMR Record of Proceedings (cont) AR20100016219
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