IN THE CASE OF:
BOARD DATE: 6 December 2011
DOCKET NUMBER: AR20110010744
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 new DD Form 214 (Certificate of Release or Discharge from Active Duty) or DD Form 215 (Correction to DD Form 214) to show he was retired due to permanent disability.
2. He states his DD Form 214 should show retirement, not honorable discharge.
3. He provides:
* 2006 reassignment orders
* 2007 Certificate of Retirement
* 2010 revocation of release from active duty (REFRAD) orders
* 2010 Temporary Disability Retired List (TDRL) orders
* 2010 TDRL removal orders
* 2010 letter from the U.S. Army Physical Disability Agency (USAPDA)
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's military records show he enlisted in the U.S. Army Reserve on 9 March 1995 for 8 years. He was ordered to active duty in support of Operation Iraqi Freedom (OIF) and entered active duty on 16 August 2004.
3. In February 2006, he was retained on active duty for medical retention processing.
4. Orders 356-0001 were issued by U.S. Army Garrison-Hawaii on 22 December 2006 reassigning him to the transition center for separation.
5. He was honorably discharged due to physical disability with severance pay on 7 January 2007 and issued a DD Form 214. He was credited with completion of 2 years, 4 months, and 22 day of net active service during this period.
6. On 4 August 2010, the Physical Disability Review Board (PDRB) recommended his separation be corrected to show he was placed on the TDRL with a disability rating of 80 percent for a period of 6 months and permanent disability retirement with a combined rating of 70 percent upon final disposition.
7. Orders 258-0003 were issued by U.S. Army Garrison-Hawaii on 15 September 2010 revoking Orders 356-0001.
8. Orders 277-0027 were issued by the U.S. Army Garrison-Hawaii on 4 October 2010 placing him on the TDRL with an effective date of 7 January 2007.
9. Orders 294-24 were issued by USAPDA on 21 October 2010 removing him from the TDRL and discharging him from the service effective 7 July 2007 due to a permanent physical disability rated at 70 percent.
10. 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. Paragraph 2-1(a)(2) specifies that a DD Form 214 will be prepared for Active Army Soldiers on termination of active duty by reason of a physical disability separation. A DD Form 214 will not be prepared for Soldiers removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows the applicant entered active duty in support of OIF on 16 August 2004 and he was discharged on 7 January 2007 for physical disability.
He was issued a DD Form 214 showing he was honorably discharged due to physical disability with severance pay.
2. On 4 August 2010, a PDRB recommended correction of his records to show he was placed on the TDRL vice discharged. His REFRAD orders were revoked and orders were published placing him on the TDRL with an effective date of 7 January 2007. On 21 October 2010, he was issued orders removing him from the TDRL for permanently disability retirement with an effective date of 7 July 2007.
3. In accordance with regulatory guidance, he is entitled to correction of his DD Form 214 to show he was honorably retired on 7 January 2007 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24(b)2, for temporary disability and placed on the TDRL.
4. There is no evidence showing he served in an active duty status after 7 January 2007 to qualify for the issuance of a subsequent DD Form 214. He was properly issued orders removing him from the TDRL for permanent disability retirement in 2010.
5. In view of the foregoing, the applicant's records should be corrected as recommended below.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____x___ ____x___ ____x___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined the evidence presented is 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:
a. voiding the applicant's DD Form 214 showing he was honorably discharged on 7 January 2007 due to physical disability with severance pay and
b. issuing him a DD Form 214 showing he was honorably retired on 7 January 2007 for temporary disability and placed on the TDRL.
2. The Board further determined 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 issuing him a DD Form 214 removing him from the TDRL in 2010 for permanent disability retirement.
____________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) AR20110010744
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ABCMR Record of Proceedings (cont) AR20110010744
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