BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110021665 


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, the spouse and legal guardian of a former service member (FSM), requests correction of her husband's DD Form 214 (Certificate of Release or Discharge from Active Duty) to include time spent on the Temporary Disability Retirement List (TDRL).

2.  The applicant states her husband retired from the Army on 1 July 1983 as shown on his Certificate of Retirement, but his DD Form 214 shows he retired on 23 September 1981.

3.  The applicant provides:

* DD Form 214
* DD Form 363A (Certificate of Retirement)
* Court-ordered Letter of Guardianship

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 FSM enlisted in the Regular Army on 19 April 1962.  He served in various positions of increased responsibility and was promoted to the rank/grade of master sergeant (MSG)/E-8 effective 1 August 1979.

3.  On 21 August 1981, a Medical Evaluation Board (MEB) found the FSM had the following medical conditions and/or physical defects:

* Anoxic encephalopathy, manifest by comatose state secondary to respiratory arrest which was secondary to pharyngeal obstruction from epiglottitis, disqualifying under Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, section XIV, paragraph 3-28(o)
* Epiglottitis, resolving
* Sepsis, probable urinary tract infection, treated, resolving

4.  On 27 August 1981, a Physical Evaluation Board (PEB) found the FSM was physically unfit and recommended a combined disability rating of 100 percent (%) and that the FSM be placed on the TDRL with reexamination during February 1983.

5.  Orders D180-23, issued by the U.S. Army Military Personnel Center, Alexandria, VA, dated 17 September 1981, relieved him from assignment and duty due to physical disability incurred while entitled to basic pay and under conditions, effective 23 September 1981, which permitted his placement on the TDRL effective 24 September 1981 in the retired grade of MSG.

6.  The FSM’s DD Form 214 for the period ending 23 September 1981, shows in:

* Item 12a (Date Entered Active Duty this Period):  79  03  20
* Item 12b (Separation Date this Period):  81 09 23
* Item 12c (Net Active Service this Period):  02 06 04
* Item 12 d (Total Prior Active Service):  16 11 01
* Item 23 (Type of Separation):  Retirement
* Item 23 (Character of Service):  Honorable
* Item 28 (Narrative Reason for Separation):  Physical Disability, Temporary

7.  On 18 May 1983, a PEB found the FSM was physically unfit and recommended a combined disability rating of 100% and that the FSM be permanently retired from the service.

8.  On 30 June 1983, the FSM was removed from the TDRL because of permanent physical disability and placed on the permanent Retired List in the rank/grade of MSG/E-8, effective 1 July 1983.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

10.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

11.  Army Regulation 635-5 (Separation Documents) establishes the 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, retirement, or discharge.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states Item 12 (Record of Service) shows the record of service and that extreme care should be used when completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  It further states for:

	a.  Item 12a, enter the beginning date of the continuous period of active duty for issuance of the DD Form 214 for which a DD Form 214 was not previously issued.

	b.  Item 12b, enter the Soldier's transition date.  This date may not be the contractual date if a Soldier is separated early, voluntarily extends or is extended for make-up of lost time, or retained on active duty for the convenience of the government.  Furthermore, paragraph 2-1b (3) provides that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the FSM entered active duty on 19 April 1962 and was retired on 23 September 1981 by reason of temporary physical disability.  There is no evidence that the FSM performed any period of active duty which would have warranted the issuance of a DD Form 214 subsequent to his retirement on 23 September 1981.

2.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty of more than 90 days to include attendance at basic and advanced training and is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The FSM's removal from the TDRL and subsequent permanent retirement has no impact on the DD Form 214 he was previously issued.  The governing regulation prohibits issuing a new DD Form 214 when a Soldier is removed from the TDRL.

3.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110021665



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ABCMR Record of Proceedings (cont)                                         AR20110021665



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