IN THE CASE OF:
BOARD DATE: 3 May 2011
DOCKET NUMBER: AR20100023449
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, a 20-year retirement.
2. The applicant states, in effect, he was injured while serving in the Army and he was placed on temporary retirement with 18 years, 7 months, and 11 days of active duty. He points out he entered active duty on 29 September 1978, he was on the temporary retirement list for a year, and he had vacation time and temporary duty time that should have counted for his retirement time. His final discharge was dated 15 September 1998.
3. He states he is currently collecting disability from the Department of Veterans Affairs, he obtained a masters degree in vocational rehabilitation counseling in 2008, and he received a Certificate of Advance Graduate Studies in mental health rehabilitation. He is not a "slacker" and feels he deserves his retirement because he would have stayed in the Army for 30 years but he was not able to perform his duties as required due to his unsuccessful surgery. If he cannot get his full retirement he would be happy with retired military identification cards for himself and his wife.
4. He further states he was still ill trying to recover from his injury and he is trying to provide for his family when he concurred with the board's recommendation. He did not realize he would have been able to receive a full retirement with
14 additional days since his final discharge date was 15 September 1998. If he had been in better health at the time he would not have agreed with the findings
and he would have prolonged his services until he had the few days needed. He indicates he was selected for promotion to master sergeant while in medical recovery which shows he was an outstanding Soldier.
5. The applicant provides:
* a letter, dated 23 August 2010, from a Member of Congress
* his retirement orders, dated 18 February 1997
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his Honorable Discharge Certificate
* a letter, dated 6 May 1997
* a DA Form 20 (Enlisted Qualification Record)
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 enlisted in the Regular Army on 29 September 1978.
3. On 10 May 1997, he was retired and placed on the Temporary Disability Retired List (TDRL) the following day. He had completed 18 years, 7 months, and 12 days of creditable active service.
4. On 15 September 1998, he was removed from the TDRL and discharged with severance pay.
5. There is no evidence of record which shows he completed 20 years of active service.
6. Army Regulation 635-200, chapter 12 sets the policies and procedures for voluntary retirement of Soldiers because of length of service. It states that a
Soldier who has completed 20 years active federal service and who has completed all required service obligations are eligible to retire.
7. Title 10, U.S. Code, section 1202 states that, upon determination that a member would be qualified for retirement but for the fact that his disability is not determined to be of a permanent nature and stable, shall, if it also is determined that the disability may be of a permanent nature, place the members name on the TDRL with retired pay.
DISCUSSION AND CONCLUSIONS:
1. The applicant was retired on 10 May 1997 and effective 11 May 1997 he was placed on the TDRL. His removal from the TDRL in September 1998 was merely an administrative action.
2. He contends his time on the TDRL should count toward his retirement. However, time spent on the TDRL is not active service and does not count for service time or regular retirement time. An individual collects retired pay while assigned to the TDRL.
3. Although he contends he was just 14 days short for a full retirement, evidence of record shows he completed 18 years, 7 months, and 12 days of creditable active service when he retired. Regrettably, there is no basis for granting the applicants request for a length of service retirement.
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) AR20100023449
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ABCMR Record of Proceedings (cont) AR20100023449
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