IN THE CASE OF:	  

		BOARD DATE:	    23 February 2012

		DOCKET NUMBER:  AR20110017167 


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 in:

* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the addition of the Army Commendation Medal (ARCOM)
* Item 28 (Narrative Reason for Separation) the entry "Disability, Permanent"

2.  The applicant states:

* he was awarded the ARCOM, but it is not on his DD Form 214
* he was placed on the Temporary Disability Retired List (TDRL), but later he was permanently retired

3.  The applicant provides no additional documentation.

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 served in the Regular Army from 15 November 2002 through 3 January 2006 when he was retired and placed on the TDRL by reason of temporary disability.  Item 13 of the DD Form 214 he was issued at the time does not show the ARCOM.

3.  Permanent Order Number 9-05, issued by Headquarters, 7th Transportation Group, Fort Eustis, VA, dated 9 January 2006, awarded the applicant the ARCOM for exceptionally meritorious service during the period 7 April 2003 to
3 January 2006.

4.  Orders D326-06, issued by the U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center, Washington, DC, dated
21 November 2008, removed the applicant from the TDRL and permanently retired him with a 60% disability rating.

5.  The U.S. Army Physical Disability Evaluation System (PDES) is governed by Title 10, U.S. Code, chapter 61, which provides the Secretaries of the Military Departments with authority to retire or separate members when the Secretary finds that they are unfit to perform their military duties because of physical disability.  The statute is implemented by Department of Defense (DoD) Directive 1332.18, DoD Instructions 1332.38 and 1332.39, and Army Regulation 635-40.

	a.  Four factors determine whether a Soldier's disposition is fit for duty, separation, permanent retirement, or temporary retirement:  whether the Soldier can perform in his/her MOS; the rating percentage; the stability of the disabling condition; and years of active service.

	b.  Temporary disability retirement occurs if the Soldier is found unfit and entitled to permanent disability retirement except that the disability is not stable for rating purposes.  "Stable for rating purposes" refers to whether the condition will change within the next five years so as to warrant a different disability rating.

	c.  When placed on the TDRL, the law requires the Soldier undergo a periodic medical reexamination within 18 months at a minimum followed by PDES 


reevaluation.  The Soldier may be retained on the TDRL or a final determination may be made.  While the law provides for a maximum tenure of 5 years on the TDRL, there is no entitlement to be retained for the entire period.  If the Soldier is determined to be permanently disabled, the USAPDA issues orders removing him/her from the TDRL for permanent retirement.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The
DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear cut record of active duty service at the time of release from active duty.  It further states a DD Form 214 will not be prepared for a Soldier removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded the ARCOM for meritorious service.  Therefore, his DD Form 214 should be corrected to show this award.

2.  The applicant's DD Form 214 was issued when he was retired by reason of temporary disability.  Later, upon reevaluation of his medical condition, he was determined to be permanently disabled and he was removed from the TDRL by appropriate USAPDA orders and permanently retired.  This is the correct process for accomplishing this action.  Army regulation prohibits a DD Form 214 from being prepared for Soldiers removed from the TDRL.  Therefore, there is no basis for granting this portion of the applicant's request.

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 adding to item 13 of his DD Form 214 the Army Commendation Medal.

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 changing Item 28 of his DD Form 214 to show the entry "Disability, permanent."



      ___________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)                                         AR20110017167



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017167



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1