IN THE CASE OF:
BOARD DATE: 21 August 2012
DOCKET NUMBER: AR20120004173
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 retired by reason of permanent disability on 7 February 2003.
2. The applicant states he is requesting revision of his DD Form 214 for the purpose of educational benefits under the 2000 GI Bill.
3. The applicant provides his DD Form 214, a transmittal of separation documents memorandum, and retirement certificate.
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. Having prior enlisted service, the applicant's records show he was appointed as a Reserve second lieutenant and entered active duty on 21 June 1989. He attained the rank of captain (CPT) in the Regular Army on 1 January 1994.
3. On 5 February 2001, a medical evaluation board (MEB) convened at Fort Lewis, WA, and diagnosed him with several unfitting conditions. The MEB recommended his referral to a physical evaluation board (PEB). On 22 February 2001 after being counseled on his rights, he agreed with the board's findings.
4. On 1 March 2001, an informal PEB convened at Fort Lewis, WA, and confirmed his unfitting disability of multiple traumas involving the lower left abdomen, left leg, atrophy of intrinsic muscles of the foot, reduced range of the motion of the ankle, and the atrophy of calf muscles. The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit for duty. He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities code 8799 and 8720 and assigned a 60-percent disability rating. The PEB recommended his retirement and placement on the Temporary Disability Retired List (TDRL) because his condition was not sufficiently stable for final adjudication. On 16 March 2001 after being counseled on his rights, he concurred with the board's findings and waived his right to a formal hearing.
5. He was honorably retired from active duty on 25 June 2001 in the rank of CPT. He completed 12 years and 5 days of creditable active service during this period.
6. Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Disability, Temporary."
7. The applicant provides a letter from the U.S. Army Physical Disability Agency, dated 6 February 2003, wherein it states he should obtain a new identification card since he was being permanently retired. He also provides a Certificate of Retirement that shows he was honorably retired on 7 February 2003.
8. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It states a DD Form 214 will not be prepared for Soldiers removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was temporarily retired from active duty on 25 June 2001 which is correctly reflected on his DD Form 214. It appears he was also removed from the TDRL and permanently retired on 7 February 2003. The DD Form 214 is a record of active Army service on the date of release from active duty. The governing regulation states DD Forms 214 are not prepared for Soldiers removed from the TDRL. Therefore, he is not entitled to the requested relief.
2. The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans' or other benefits. Every case is individually decided based upon its merits when an applicant requests a correction to his military records.
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) AR20120004173
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