IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100024197 


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 his military records be corrected to show he was transferred to the Retired Reserve upon his removal from the Temporary Disability Retired List (TDRL).  He also requests his orders removing him from the TDRL be corrected to show a line of duty (LOD) status of yes.

2.  The applicant states records at the Defense Finance and Accounting Service (DFAS) show he was discharged from the Individual Ready Reserve (IRR).  He states the orders removing him from the TDRL show he was not in an LOD status when his disability had been determined to be in LOD.

3.  The applicant provides:

* orders placing him on the TDRL
* two certificates of retirement
* discharge orders and certificate from the U.S. Army Reserve (USAR)
* orders for removal from the TDRL
* a narrative summary of physical examination given on 18 November 2002
* orders placing him on the Retired List
* page 2 of his Combat-Related Special Compensation (CRSC) decision letter
* two packets of correspondence between him, DFAS, and his Congressional representative


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.  He enlisted in the Florida Army National Guard (FLARNG) on 16 May 1976.  He had previously completed 6 years in the U.S. Navy and U.S. Navy Reserve.  

3.  On 6 November 1992, he was ordered to full-time National Guard duty in Active Guard Reserve (AGR) status for the period from 15 February 1993 to 
15 May 1998.

4.  On 15 June 1993, he was notified that he had completed the required years of service and he would be eligible for retired pay upon application at age 60 
(20-year letter).

5.  U.S. Total Army Personnel Command (now known as Human Resources Command (HRC)) Order D28-1, dated 11 February 1998, stated he was released from assignment and duty because of physical disability and was to be placed on the TDRL effective 10 May 1998.

6.  FLARNG Orders P076-025, dated 17 March 1998, as modified by orders dated 10 September 1998, discharged him from the FLARNG and transferred him to the USAR Control Group.  Additional instructions showed his disability to be LOD.

7.  U.S. Army Reserve Personnel Command (also now known as HRC) Orders D-04-118067, dated 3 April 2001, discharged him from the USAR.

8.  U.S. Army Physical Disability Agency (USAPDA) Orders D102-1, dated 
27 May 2003, stated he had been found fit for duty and was removed from the TDRL effective 5 March 2003.  These orders contain the entry: Disability is based on injury or disease received in LOD as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:  Not Applicable."  The proceedings of his Physical Evaluation Board (PEB) were not available for review.

9.  HRC Orders P03-921908, dated 18 March 2010, stated he was retired and placed on the Retired List effective 8 June 2008.  Additional instructions state he is authorized retired pay under the provisions of 10 United States Code section 12731.

10.  In the processing of this case an advisory opinion was received on 25 March 2011 from USAPDA.  USAPDA stated he was found fit for duty meaning he had no unfitting conditions and no disabilities that would preclude him from performing his assigned military duties if he chose to reenter the military.  Accordingly his orders removing him from the TDRL did not indicate that he had any unfitting disabilities making the section that relates to any disability being considered in LOD as a direct result of armed conflict "not applicable."  Combat related findings are only made when a Soldier is found unfit for a compensable disability.

11.  On 5 April 2001, the applicant submitted a rebuttal to the USAPDA opinion.  He talked to I___e B___r at TDRL and she notified him that his record was lost and she remembered the case and thought that he was discharged on disability. He stated he acquired the condition he was placed on the TDRL for during his tour in the Republic of Vietnam with the U.S. Navy was because of Agent Orange.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, stated HRC will remove a Soldier from the TDRL on the fifth anniversary of the date he was placed on the TDRL or sooner on the approved recommendation of a PEB.  Upon removal from the TDRL, a USAR Soldier, subject to their consent, has the following options:

* reenlistment in the USAR in the grade held on the day before the date placed on the TDRL or in the next higher grade 
* transfer to the Retired Reserve, if eligible  
* request active duty under USAR regulations

DISCUSSION AND CONCLUSIONS:

1.  If there is no disability, there is no requirement to list a finding of in LOD.  When he was removed from the TDRL he was found fit for duty.  This entry does not mean the condition for which he was placed on the TDRL was not in LOD.  The LOD determination for that condition was already determined to be incurred in LOD.  Therefore, the entry on USAPDA Orders D102-1 dated 27 May 2003 concerning LOD is correct.

2.  There are no provisions for discharging individuals while they are on the TDRL.  It is clear that U.S. Army Reserve Personnel Command Orders D-04-118067, dated 3 April 2001, were issued in error.  Therefore, it is appropriate to revoke these orders.

3.  In his rebuttal to HRC's opinion he stated he contacted staff at TDRL and they told him his record was lost and thought he had been discharged due to disability.  Based on this situation it is not unreasonable to conclude he did not receive adequate counseling concerning his options, one of which was transfer to the Retired Reserve, upon his release from the TDRL.  

4.  When he was placed on the TDRL he had completed sufficient qualifying years to receive non-regular retired pay at age 60.  There is no record he reenlisted in the USAR.  Therefore, it would be equitable to correct his records to show he requested and was transferred to the Retired Reserve upon removal from the TDRL.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* revoking U.S. Army Reserve Personnel Command Orders D-04-118067, dated 3 April 2001
* showing he requested and was transferred to the Retired Reserve effective 6 March 2003


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the LOD status on USAPDA Orders D102-1, dated 27 May 2003.



      ____________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)                                         AR20100024197





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ABCMR Record of Proceedings (cont)                                         AR20100024197



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