IN THE CASE OF:
BOARD DATE: 4 January 2013
DOCKET NUMBER: AR20120010939
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, in effect, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be updated to show his status as permanent physical disability retirement and to include the time he was on the Temporary Disability Retired List (TDRL).
2. The applicant states as of 31 August 1971 he was officially removed from the TDRL and put on permanent retired status, but an updated DD Form 214 was never issued.
3. The applicant provides:
* a letter of transmittal, dated 6 August 1971, from the Office of the Adjutant General, Washington, DC
* Office of the Adjutant General, Washington, DC, Letter Orders Number D8-299, dated 6 August 1971
* a letter, dated 21 May 2012, from the National Personnel Records Center (NPRC), St. Louis, MO
* his DD Form 214
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. He was inducted into the Army of the United States on 19 June 1967.
3. On 30 August 1968, a Physical Evaluation Board (PEB) found him unfit for duty and recommended a combined disability rating of 60 percent. The PEB recommended he be placed on the TDRL with a reexamination during September 1969.
4. On 12 November 1968, he was retired and placed on the TDRL on
13 November 1968. His percentage of disability was 60 percent. He was issued a DD Form 214 for the period of active service from 19 June 1967 to
12 November 1968. He completed 1 year, 4 months, and 24 days of active service.
5. On 18 June 1971, a formal PEB found him unfit for duty and recommended a combined disability rating of 40 percent. The PEB recommended he be permanently retired from the service.
6. On 31 August 1971, he was removed from the TDRL and permanently retired with a disability rating of 50 percent.
7. Army Regulation 635-5 (Personnel Separations, Separation Documents) states, in pertinent part, that a DD Form 214 will be issued at the time of separation to each member of the Regular Army, and each member of the Reserve components and the Army of the United States (AUS) without component, called or ordered to active duty or active duty for training (ACDUTRA) for a period of 90 days or more. This regulation specifically prohibits the issuance of a DD Form 214 to personnel being removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The DD Form 214 is a record of active duty performed by a Soldier. The period of time he spent on the TDRL is not active service and does not change the period of active service currently reflected on his DD Form 214 or the reason he was released from active duty due to disability and placed on the TDRL. Therefore, the dates of service reflected on the DD Form 214 are correct.
2. The regulation specifically prohibits the issuance of a DD Form 214 upon removal from the TDRL. Time spent on the TDRL is not active service. Therefore, it is not appropriate to issue a DD Form 214 subsequent to his retirement on 12 November 1968.
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) AR20120010939
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ABCMR Record of Proceedings (cont) AR20120010939
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