IN THE CASE OF:
BOARD DATE: 25 January 2011
DOCKET NUMBER: AR20100016720
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, correction of item 11d (Effective Date) of his DD Form 214 (Report of Transfer or Discharge) to show 1 May 1973.
2. The applicant states:
* he was drafted so he was given 2 years as his time in service, but he was in the service until his retirement on 1 May 1973
* he was in and out of Fitzsimons Army Hospital from November 1969 until 1 May 1973
3. The applicant provides no documentary evidence in support of his 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 was inducted into the Army of the United States on 24 October 1966. He served as a field artillery crewman in Vietnam from 4 April 1967 until he was wounded in action and evacuated to the United States for further medical treatment on 26 June 1967. On 19 June 1969, he was released from active duty and placed on the Temporary Disability Retired List (TDRL) the following day. On 30 April 1973, he was removed from the TDRL with a permanent disability rating of 30 percent and he was permanently retired on 1 May 1973.
3. Item 11d of the applicant's DD Form 214 shows the effective date of his separation for temporary disability retirement as 19 June 1969.
4. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. The version of the regulation in effect at the time stated the date separation was accomplished would be entered in item 11d of the DD Form 214. It also stated that a DD Form 214 would not be prepared for members being removed from the TDRL.
5. Title 10, U.S. Code, section 1202, provides that if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.
DISCUSSION AND CONCLUSIONS:
The applicant was placed on the TDRL effective 20 June 1969. Even though he may have had hospital appointments after that date, 20 June 1969 was the date he was officially retired. His DD Form 214 properly reflects this separation date in item 11d. Since the governing regulation states that a DD Form 214 will not be prepared for members being removed from the TDRL, there is no basis for granting the applicant's request.
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) AR20100016720
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ABCMR Record of Proceedings (cont) AR20100016720
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