BOARD DATE: 6 January 2011
DOCKET NUMBER: AR20100017060
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, his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 July 1988 be corrected to include the period he was on the Temporary Disability Retired List (TDRL).
2. The applicant states the accurate date of his military retirement should be reflected on his permanent U.S. Army record.
3. The applicant provides copies of his:
* orders placing him on the TDRL
* DD Form 214 with a separation date of 7 July 1988
* a Certificate of Retirement dated 8 July 1988
* orders removing him from the TDRL and placing him on the Retired List by reason of permanent physical disability
* a Certificate of Retirement dated 10 August 1991
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 applicant was commissioned a second lieutenant in the U.S. Army Reserve effective 29 May 1968 and entered active duty on 3 July 1968.
3. On 28 March 1988, a Physical Evaluation Board (PEB) found the applicant unfit for duty and recommended a combined disability rating of 90 percent. The PEB recommended the applicant be placed on the TDRL with reexamination during September 1989.
4. On 7 July 1988, the applicant was retired and placed on the TDRL on 8 July 1988. His percentage of disability was 90 per cent. He was issued a DD Form 214 for the period of active service from 29 May 1968 to 7 July 1988.
5. The applicant submitted a copy of his Certificate of Retirement issued on 8 July 1988.
6. On 14 December 1989, a PEB recommended that the applicant's disposition be: retained on TDRL with reexamination during 30 January 1991.
7. On 3 July 1991, a PEB found the applicant unfit for duty and recommended a combined disability rating of 90 percent. The PEB recommended the applicant 's disposition be: permanent disability retirement.
8. On 9 August 1991, the applicant was removed from the TDRL and placed on the Retired List on 10 August 1991 due to permanent physical disability. His percentage of disability is 90 percent.
9. The applicant was issued a Certificate of Retirement that is dated 10 August 1991.
10. Army Regulation 635-5 (Personnel Separations, Separation Documents) states in Note 1 of Table 1-1 (Authorized Separation Documents) that a Certificate of Retirement is not to be issued to members placed on the TDRL.
11. Army Regulation 635-5 states, in pertinent part, that a DD Form 214 will be issued at the time of separation to each member of the Regular Army, and each member of the Reserve components and the Army of the United States (AUS) without component, called or ordered to active duty or active duty for training (ACDUTRA) for a period of 90 days or more. This regulation specifically prohibits the issuance of a DD Form 214 to personnel being removed from the TDRL.
12. Army Regulation 635-200 (Personnel Separations) defines active duty as full time duty in the active military service of the United States - includes active duty for training.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his time spent on the TDRL should be included on his DD Form 214.
2. The DD Form 214 is a record of active duty performed by a Soldier. The period of time the applicant spent on the TDRL is not active service and does not change the period of active service currently reflected on his DD Form 214 or the reason he was released from active duty due to disability and placed on the TDRL. Therefore, the dates of service reflected on the DD Form 214 are correct.
3. The regulation specifically prohibits the issuance of a DD Form 214 upon removal from the TDRL. Time spent on the TDRL is not active service. Therefore, there was no DD Form 214 issued subsequent to the applicant's retirement on 7 July 1988.
4. The Certificate of Retirement, dated 8 July 1988, was issued in error. The regulation specifically states the Certificate of Retirement is not to be issued to personnel being placed on the TDRL. Therefore, the applicant's Certificate of Retirement showing the date of retirement as 10 August 1991 is his valid certificate.
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) AR20100017060
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ABCMR Record of Proceedings (cont) AR20100017060
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