IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120011459 


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 separation date.

2.  The applicant states he was honorably discharged from active duty in 1996 and placed on the Temporary Disability Retired List (TDRL).  After 5 years, he was removed from the TDRL.  He believes the 5 years should be added to his separation date.  During this period, he had a military identification card and all other military benefits.  After his removal from the TDRL, he had to surrender his military identification card.  He believes the 5 years of retired service on the TDRL should count as a continuation of his active service.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders D106-7 (removal from the TDRL)

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 applicant's records show he enlisted in the Regular Army on 1 November 1984 and he held military occupational specialty 11H (Heavy Anti-Armor Weapon Infantryman).  He served through multiple reenlistments and he attained the rank/grade of staff sergeant/E-6.

3.  On 6 June 1996, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant had the medically unacceptable conditions of post-traumatic stress disorder (PTSD) and bipolar disorder.  The MEB recommended his referral to a physical evaluation board (PEB).  The applicant agreed with MEB's findings and recommendations and indicated he did not desire to continue on active duty.

4.  On 11 July 1996, a PEB convened and found he was physically unfit to perform the duties in his grade and military specialty by reason of PTSD and bipolar disorder.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and recommended a combined physical disability rating of 30 percent and placement on the TDRL with reexamination in 1998.  The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.

5.  On 14 September 1996, the applicant was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), and placed on the TDRL.  His DD Form 214 shows he completed 11 years, 10 months, and 14 days of active service.  Item 23 (Type of Separation) of this form shows the entry "RETIREMENT," item 25 (Separation Authority) shows the entry "AR 635-40, PARA 4-24B(2)," and item 28 (Narrative Reason for Separation) shows the entry "DISABILITY, TEMPORARY."

6.  After two TDRL PEB's considered and retained him on the TDRL, a TDRL PEB convened at Fort Sam Houston, TX, on 12 April 2002 and found the applicant's condition did not improve to the extent that he was considered fit for duty and he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his condition at the time was considered sufficiently stable for final adjudication.  He was rated as 10-percent disabled under the VASRD code applicable to his medical condition.  Accordingly, the PEB recommended his separation with entitlement to severance pay.

7.  The applicant was informed of the PEB's findings and recommendations.  He did not concur and submitted a rebuttal.

8.  On 19 April 2002, the PEB reviewed his rebuttal and determined that no change to the original findings was warranted.  Accordingly, the U.S. Army Physical Disability Agency published Orders D106-7, dated 31 May 2002, removing the applicant from the TDRL and discharging him from the Army effective 31 May 2002 with entitlement to severance pay.  He was issued an Honorable Discharge Certificate.

9.  Army Regulation 635-40 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 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 purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Chapter 2 contains guidance for preparation of the DD Form 214.  Extreme care is used when completing item 12 (Record of Service) since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Item 12a (Date Entered Active Duty This Period) shows 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 and item 12b (Separation Date This Period) shows the Soldier's transition date.  Paragraph 2-1(b)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 shows the applicant enlisted on 1 November 1984 and was retired on 14 September 1996 by reason of temporary physical disability.  There is no evidence to show the applicant performed any period of active duty service following his placement the TDRL that would have warranted the issuance of a DD Form 214 subsequent to his retirement on 14 September 1996.
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.

3.  The applicant's removal from the TDRL and subsequent discharge with entitlement to severance pay has no impact on the DD Form 214 he was previously issued.  Furthermore, there is no provision or regulatory requirement to issue a new DD Form 214 when a Soldier is removed from the TDRL.

4.  In view of the foregoing evidence, he is not entitled to 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 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)                                         AR20120011459



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ABCMR Record of Proceedings (cont)                                         AR20120011459



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