IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120002237 


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:

* 24 years of service
* the narrative reason for separation as "disability, permanent"

2.  He states his DD Form 214 does not reflect the service shown on his Chronological Statement of Retirement Points.  He contacted the Welcome Center at Fort Buchanan, PR, to address the error and was told it could not be corrected.  

3.  He provides:

* a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* his ARPC Form 249-E (Chronological Statement of Retirement Points)
* his DD Form 214 for the period ending 9 May 2008

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 23 September 1976, the applicant enlisted in the Regular Army.  On 21 September 1979, he was honorably released from active duty.  On 9 October 1979, he enlisted in the Army National Guard, where he served until he was separated on 19 October 1987.  

3.  On 9 October 1988, he enlisted in the U.S. Army Reserve (USAR).  On 5 November 2002, he was honorably discharged from the USAR.  Following a break in service, on 5 August 2004, he enlisted again in the USAR. 

4.  Orders in his record show he was ordered to active duty for a period of 545 days in support of Operation Iraqi Freedom.  His reporting date was 19 January 2006, and he reported as ordered.  On 6 April 2007, he was released from active duty by reason of completion of required active service.  

5.  On 26 June 2007, the U.S. Army Human Resources Command (HRC), Alexandria, VA, issued Orders A-06-714743, which ordered him to active duty effective 18 June 2007 to participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.  

6.  On 4 March 2008, a Physical Evaluation Board (PEB) convened to consider his fitness for further military service.  The PEB found him unfit for symptoms related to Guillain-Barre syndrome and depressive disorder.  The PEB recommended he be placed on the Temporary Disability Retired List (TDRL) because his condition was not sufficiently stable for final adjudication, with a combined disability rating of 60 percent.  He concurred and the PEB recommendations were approved by the U.S. Army Physical Disability Agency (USAPDA).  

7.  On 14 April 2008, Headquarters, U.S. Army Garrison, Fort Buchanan, PR, issued Orders 105-0001, which released him from assignment and duty because of physical disability and placed him on the TDRL effective 10 May 2008.  

8.  His DD Form 214 for the period ending 9 May 2008 shows in:

* item 12c (Net Active Service this Period) – 10 months and 22 days
* item 12d (Total Prior Active Service) – 5 years, 1 month, and 17 days
* item 12e (Total Prior Inactive Service) – 24 years, 7 months, and 24 days
* item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2)
* item 28 (Narrative Reason for Separation) – disability, temporary

9.  His record includes a Twenty Year Letter, dated 10 July 2008, showing he was notified he had completed the required years of qualifying Reserve service to be eligible for retired pay upon application at age 60.

10.  His record is void of documentation showing he has been permanently retired for disability.  

11.  He provides an ARPC Form 249-E printed on 12 June 2008 that shows he completed 24 years and 1 day of service qualifying for retirement.  

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and 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.

	a.  Paragraph 4-24 provides the authority for disposition of a Soldier based on the decision of the USAPDA.  It states HRC may issue orders or direct a subordinate headquarters to issue orders placing a Soldier on the TDRL.  

	b.  The regulation states the TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

	c.  A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  Medical examiners and adjudicative bodies will carefully evaluate each case.  They will recommend removal of the Soldier’s name from the TDRL as soon as the Soldier’s condition permits.  HRC will issue permanent retirement orders when an appropriate authority has determined a Soldier should be removed from the TDRL and permanently retired for disability.  

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the narrative reasons for separation to be entered in item 28 of DD Form 214.  It states the narrative reason "disability, temporary" will be used for separations under the provisions of Army Regulation 635-40, paragraph 
4-24b(2).

14.  Army Regulation 635-5 (Separation Documents) states 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his DD Form 214 for the period ending 9 May 2008 to show 24 years of service or to show the narrative reason for his separation was "disability, permanent."

2.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It is not used to document the Soldier's entire military career; however, prior active and inactive service are entered on the form.  His final DD Form 214 properly shows his prior active and inactive service.  

3.  On 9 May 2008, he was retired and placed on the TDRL under the provisions of Army Regulation 635-40, paragraph 4-24b(2).  His DD Form 214 shows the narrative reason for his separation as "disability, temporary," which is correct.  He was not permanently retired for disability at that time.  There is no basis for changing an entry that is correct.  

4.  It appears he is still on the TDRL.  When an appropriate authority directs his removal from the TDRL, he will be issued orders directing his final disposition.  The orders, not his DD Form 214, will be the official record of the final determination of his status, which may be permanent retirement for disability.  

5.  In view of the foregoing, there is no basis for granting the 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)                                         AR20120002237





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ABCMR Record of Proceedings (cont)                                         AR20120002237



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