IN THE CASE OF:
BOARD DATE: 14 June 2012
DOCKET NUMBER: AR20110024739
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 the DD Form 214 (Certificate of Release or Discharge from Active Duty) of her deceased husband, a former service member (FSM), to show he was separated by reason of permanent disability.
2. The applicant states the FSM's DD Form 214 shows he was separated by reason of temporary disability; however, he was rated 100-percent disabled by the Department of Veterans Affairs (VA).
3. The applicant provides copies of correspondence from the Department of the Air Force Review Boards Office, the FSM's DA Form 199 (Physical Evaluation Board (PEB) Proceedings), a DD Form 294 (Application for a Review by the Physical Disability Board (PDBR) of Review of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States), correspondence from the VA, and the FSM's medical records from the Walter Reed Army Medical Center.
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's records, though somewhat incomplete, show he was serving in the U.S. Army Reserve when he was ordered to active duty in an Active Guard Reserve status on 24 January 1999.
3. On 17 September 2003, he was honorably retired by reason of temporary disability and placed on the Temporary Disability Retired List (TDRL) in pay grade E-5.
4. The applicant remained on the TDRL until his death on 22 January 2007 due to a motor vehicle accident involving a head-on collision.
5. The applicant applied to the PDBR in 2011. The PDBR informed the applicant that the FSM had been discharged based on a disability that existed prior to service and provided her with the PEB Proceedings, dated 26 March 2001. However, those proceedings could not have been the proper proceedings in the FSM's current case because they are dated prior to his being placed on the TDRL. Accordingly, they are not applicable to this case and will not be discussed further in this Record of Proceedings.
6. Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214. It provides that a DD Form 214 will not be prepared when individuals are removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. Although the FSM's records do not contain the relevant medical evaluation board (MEB) and PEB Proceedings, it appears that the FSM was placed on the TDRL on 17 September 2003 and he died before a determination could be made regarding his potential permanent disability.
2. However, notwithstanding those facts, even had the FSM been retired by reason of permanent disability prior to his death, there is no authorization to change the FSM's DD Form 214 after he was placed on the TDRL. The applicable regulation provides that the DD Form 214 will not be issued when an individual is removed from the TDRL. Normally, orders are published announcing the change in status.
3. Accordingly, the FSM's DD Form 214 does not contain an error and there is no injustice in this case to correct. As a result, there appears to be no basis to grant the applicant's request.
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 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) AR20110024739
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110024739
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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