IN THE CASE OF:
BOARD DATE: 8 September 2011
DOCKET NUMBER: AR20110003012
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the percentage of his disability rating.
2. The applicant states:
a. his DD Form 214 does not list his disability rating; and
b. the initial disability rating is listed on the DD Form 214 when a Soldier is separated from military service due to an injury.
3. The applicant provides a copy of his DD Form 214.
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 applicants military records show he enlisted in the Regular Army (RA) on 2 September 1987. He was trained in and served in military occupational specialty 71D (Legal Specialist).
3. On 21 June 1999, Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina, issued Orders Number 172-0267, which directed the applicants discharge from active duty on 31 July 1999. These orders also show he was entitled to disability severance pay and assigned a 10% disability rating based on an injury received in the line of duty as a direct result of armed conflict or an instrumentality of war.
4. On 31 July 1999, the applicant was honorably discharged from active duty. He completed 11 years, 10 months and 29 days of active federal service. The DD Form 214 issued at that time shows in:
a. Item 18 (Remarks) of the DD Form 214 included the entry "Disability with Severance Pay--$53,200.80";
b. Item 25 (Separation Authority): he was discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3); and
c. Item 28 (Narrative Reason for Separation): he was discharged due to disability with severance pay.
5. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.
a. It establishes standardized policy for preparing and distributing the
DD Form 214;
b. It contains item-by-item instructions for completing the DD Form 214; and
c. for item 18, it specifies for a Soldier receiving separation/readjustment or non-disability severance pay (as indicated by the finance office), enter type of pay and amount.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his DD Form 214 should be corrected to show his disability rating.
2. The applicant's DD Form 214 appropriately shows he was discharged by reason of "disability with severance pay" totaling $53,200.80. His discharge order identifies the 10% disability rating he received; however, there is no provision of regulation that allows for recording the percentage of the disability or rating received on the DD Form 214. Accordingly, there is no basis upon which to grant the requested relief in this case.
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) AR20110003012
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ABCMR Record of Proceedings (cont) AR20110003012
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