IN THE CASE OF:
BOARD DATE: 11 April 2013
DOCKET NUMBER: AR20120017082
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 his retirement date as 17 November 1990 instead of 11 September 1987.
2. He states his records show his retirement date as 11 September 1987, but his official retirement date is 17 November 1990.
3. He provides:
* Memorandum from the U.S. Army Physical Evaluation Board
* Certificate of Retirement
* Memorandum from the U.S. Total Army Personnel Command (currently known as the U.S. Army Human Resources Command)
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 enlisted in the Regular Army on 23 October 1973 and continued to serve on active duty through a series of reenlistments.
3. On 14 May 1987, a Medical Evaluation Board (MEB) diagnosed the applicant as suffering from cluster headaches and gout.
4. The MEB proceedings indicated the applicant's medical conditions were incurred while entitled to base pay and they did not exist prior to service. The applicant agreed with the MEB's findings and recommendation. He was referred to a Physical Evaluation Board (PEB).
5. On 1 June 1987, an informal PEB determined the applicant was physically unfit due to gout and cluster headaches at a 30 percent (%) disability rating.
6. Orders D162-32, dated 20 August 1987, published by the U.S. Army Military Personnel Center, Alexandria, VA, released him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions which permitted placement on the Temporary Disability Retired List (TDRL), effective 10 September 1987. On the following date he was placed on the retired list in the rank of staff sergeant (SSG).
7. His DD Form 214 shows he was retired on 10 September 1987 by reason of temporary physical disability.
8. On 5 July 1990, an informal PEB determined the applicant was physically unfit due to degenerative joint disease of the first metatarsophalangeal joints, bilateral without soft tissue swelling, with some rigidus and x-ray evidence of subchondral sclerosis and chronic cluster headaches. The informal PEB recommended permanent disability retirement at a combined disability rating of 30%. The applicant did not concur with the PEB findings and demanded a formal hearing with a personal appearance. He also requested a regularly appointed counsel to represent him.
9. On 6 September 1990, a formal PEB determined the applicant was physically unfit due to degenerative joint disease of his first metatarsophalangeal joints and chronic cluster headaches. The formal PEB recommended permanent disability retirement at a combined disability rating of 40%.
10. Orders D226-9, dated 16 November 1990, removed him from the TDRL on 16 November 1990 because of permanent physical disability and on the following date he was permanently retired in his current rank of SSG.
11. He provided a Certificate of Retirement which indicates he was permanently retired from the U.S. Army on 7 November 1990.
12. 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 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. Paragraph 2-1b(3) of this regulation states a DD Form 214 will not be prepared for Soldiers who are removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should show his retirement date as 17 November 1990. However, the evidence of record does not indicate that an error or injustice exists in this case.
2. The applicant was retired from active duty on 10 September 1987 and placed on the TDRL due to physical disability-temporary. Based on the governing regulation, the applicant's DD Form 214 should reflect his last date of active service, which was 10 September 1987. Therefore, his DD Form 214 accurately reflects his retirement date.
3. Orders D226-9, dated 16 November 1990, accurately show he was removed from the TDRL and he was permanently retired on this date.
4. Based on the foregoing, there is no basis for granting 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 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) AR20120017082
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20120017082
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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