IN THE CASE OF:	  

		BOARD DATE:  26 September 2013

		DOCKET NUMBER:  AR20130001611 


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:

* item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was permanently retired effective 13 January 2010
* Orders D012-74, dated 13 January 2010, to show his disability was based on an injury or disease received in the line of duty (LOD) during a war period as defined by law and resulted from a combat-related injury

2.  The applicant states:

	a.  On 13 January 2010, he received orders that removed him from the Temporary Disability Retired List (TDRL) and permanently retired him.  He needs item 28 of his DD Form 214 corrected to show "retired" vice "disability, temporary" and he needs a new DD Form 214 mailed to him.

	b.  The portion of his permanent retirement orders that state:  "Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in LOD during a war period as defined by law" should be corrected to read "applicable" vice "not applicable."  His traumatic brain injury (TBI) and his back injuries were both incurred from an improvised explosive device (IED) explosion.  He needs his orders corrected to show he retired due to disabilities incurred in Iraq.

	c.  He needs his DD Form 214 and retirement orders corrected for leave and retirement purposes for his job with the Department of Veterans Affairs (VA).  His medical files can be obtained from the Brooke Army Medical Center, Fort Sam Houston, TX, where he was a patient for 10 months, and from the VA Medical Center, Seattle, WA.

3.  The applicant provides his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 October 2002 and he held military occupational specialty (MOS) 11B (Infantryman).  He served in Iraq from 1 April 2003 to 28 July 2004 and from 17 September 2006 to 6 April 2007.

2.  On 15 November 2007, an informal physical evaluation board (PEB) convened at Fort Sam Houston, TX, and confirmed his unfitting disabilities of intervertebral disc degeneration with chronic lumbago and post-traumatic stress disorder/cognitive disorder due to a TBI status post-IED blast in 2006 and 2007.  The PEB found his condition prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit for duty.  He was rated under the VA Schedule for Rating Disabilities and assigned a 
30-percent disability rating.  The PEB recommended his retirement and placement on the TDRL with a reexamination in May 2009.  After being counseled on his rights, he concurred with the board's findings and waived his right to a formal hearing.

3.  His DA Form 199 (PEB Proceedings), dated 15 November 2007, stated, in part, the Soldier's retirement was based on disability from an injury or disease received in the LOD, and the disability did result from a combat-related injury.

4.  He was honorably retired due to temporary disability on 8 February 2008 and placed on the TDRL.  He completed 5 years, 4 months, and 1 day of creditable active service.

5.  Item 23 (Type of Separation) of his DD Form 214 shows the entry "RETIREMENT."  Item 28 of his DD Form 214 shows the entry "DISABILITY, TEMPORARY."

6.  U.S. Army Physical Disability Agency Orders D012-74, dated 13 January 2010, removed him from the TDRL and permanently retired him effective 13 January 2010.  These orders stated, in part:

* Disability is based on injury or disease received in LOD as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in LOD during a war period as defined by law:  Not Applicable
* Disability resulted from a combat related injury as defined in 26 USC 104:  Not Applicable

7.  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 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.  Paragraph 2-1 states that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  With respect to correction of item 28 of the applicant's DD Form 214 to show he was permanently retired on 13 January 2010, the evidence of record confirms he was retired by reason of temporary disability on 8 February 2008 which is correctly reflected on his DD Form 214.  He was removed from the TDRL and permanently retired on 13 January 2010.  The DD Form 214 is a record of active Army service on the date of release from active duty.  He did not serve on active duty between his placement on the TDRL and the date he was permanently retired.  The governing regulation specifically states that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

2.  With respect to correction of Orders D012-74, the applicant's placement on the TDRL was based on the PEB's finding that his disabilities were based on an injury received in the LOD as a direct result of armed conflict and did result from a combat-related injury.  However, the orders permanently retiring him do not affect or change the entries on his DD Form 199 and, therefore, they are not applicable which is correctly reflected on the orders.

3.  In view of the foregoing, 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)                                         AR20130001611



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ABCMR Record of Proceedings (cont)                                         AR20130001611



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