IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110015769 


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 he was permanently retired by reason of physical disability.

2.  The applicant states he attempted to obtain a military retired identification card at Corpus Christi Naval Air Station; however, his request was denied because item 28 (Narrative Reason for Separation) of his DD Form 214 documents his physical disability as temporary.

3.  The applicant provides 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 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.  On 25 June 1982, the applicant enlisted into the U.S. Army Reserve (USAR).
On 1 September 1982, he entered active duty at Fort Leonard Wood, MO, for the purpose of attending initial active duty for training (IADT).

3.  On 13 September 1982, he was examined at the General Leonard Wood Army Community Hospital, Fort Leonard Wood, and he was diagnosed with a right shoulder tear that occurred on or about 8 September 1982.  He was determined to be medically unfit for further military service and he was referred to a medical evaluation board (MEB) to determine the extent of his disability.

4.  On 13 January 1983, an MEB convened at the General Leonard Wood Army Community Hospital.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having a right suprascapular nerve injury secondary to hematoma and supraspinatus muscle tear (right shoulder injury).  The MEB recommended his referral to a physical evaluation board (PEB).  The applicant agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

5.  On 9 February 1983, an informal PEB convened at Fort Leonard Wood and found his condition prevented him from performing the duties required of a basic trainee, and determined he was physically unfit for retention due to paralysis, incomplete, of the right suprascapular nerve, due to injury to shoulder, with weakness and atrophy of the supraspinatus and infraspinatus muscles of the dominant arm, moderate.

6.  The PEB noted his physical impairments were of such nature that evaluation of a permanent degree of severity was not possible at the time.  The PEB rated his level of disability at 40 percent (%), and recommended placing him on the Temporary Disability Retired List (TDRL) with future reexamination in August 1984.  On 16 February 1983, he concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

7.  Orders D47-23, issued by the U.S. Army Military Personnel Center, Alexandria, VA, dated 9 March 1983, relieved him from his present assignment because of physical disability incurred while entitled to basic pay, retired him effective 23 March 1983, and placed him on the TDRL effective 24 March 1983.

8.  On 23 March 1983, he was retired in the rank/grade of private (PV2)/E-2.  The DD Form 214 he was issued shows he was retired in accordance with Title 10, U.S. Code, section 1202, with a 40% disability rating percentage by reason of temporary physical disability.  This form shows he completed 6 months and
23 days of creditable active service.
9.  On 1 May 1984, he was notified he would be ordered to active duty at Brooke Army Medical Center, Fort Sam Houston, TX, for the purpose of undergoing a periodic medical examination in August 1984.

10.  On 24 and 25 September 1984, he underwent examinations at Brooke Army Medical Center.  

11.  On 15 October 1984, the applicant's attending physician and the Deputy Commander for Clinical Services finished his narrative summary, in which they determined he had recovered from his initial injury and he was now fit for duty without profile.  On 23 October 1984, the applicant acknowledged he had been informed of the medical evaluation findings and recommendation and he did not desire to appeal.

12.  On 7 November 1984, a TDRL PEB convened at Fort Sam Houston, TX, and determined his former injury was resolved.  The PEB found that there were no restrictions which would preclude the applicant form full and effective military service in his grade, and no prohibition against normal physical activities expected for reasonable performance.  Accordingly, the PEB considered him fit for duty.

13.  On 10 November 1984, he acknowledged receipt of the board's findings, stated his concurrence, and waived a formal hearing of his case.

14.  Orders D231-48, issued by the U.S. Army Military Personnel Center, Alexandria, VA, dated 14 December 1984, found him fit for duty and removed him from the TDRL effective 28 December 1984.  His record is void of documentation indicating his post-TDRL service elections; specifically, whether he would reenlist in the USAR or request discharge.

15.  Title 10, U.S. Code, section 1202 provides that if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.

16.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.

17.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he was permanently retired by reason of physical disability.

2.  The evidence of record shows he presented a medical condition and subsequently underwent an MEB, which recommended his referral to a PEB.  He agreed with this recommendation.  The PEB found his condition prevented him from performing his duties and determined he was physically unfit for performance of military duty by reason of physical disability, but his condition had not sufficiently stabilized at the time to permit an accurate assessment of a permanent degree of disability.  Accordingly, the PEB recommended placing him on the TDRL by reason of temporary physical disability.  The applicant concurred and Headquarters, Department of the Army, issued orders directing his temporary disability retirement.

3.  He was issued a DD Form 214 upon conclusion of his active service and transfer to the TDRL in March 1983.  This document captured his active service as well as his disposition (retirement by reason of temporary disability).  There is neither an error nor an injustice.  In addition, in the absence of evidence to the contrary it is presumed that he was receiving retired pay during the period he was on the TDRL at the 40% rate.

4.  A TDRL PEB later determined the applicant's medical condition had resolved and the board found him to be physically fit for duty.  As such, Orders D231-48 he was issued directed his removal from the TDRL; he was not permanently retired.

5.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20110008209



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ABCMR Record of Proceedings (cont)                                         AR20110015769



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