IN THE CASE OF:
BOARD DATE: 7 November 2013
DOCKET NUMBER: AR20130004445
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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: Physical Disability, Permanent.
2. The applicant states:
a. Item 28 of her DD Form 214 shows: Physical Disability, Temporary. As per the findings of the Physical Evaluation Board (PEB) convened on 26 February 1987, it was ruled that she was physically unfit for duty and was separated from the U.S. Army for permanent medical retirement with a disability rating of 20 percent (%).
b. Upon initial separation from the Army, she was placed on the Temporary Disability Retired List (TDRL). After a period of time, her physical status was reviewed and she was determined to still be disabled and not eligible to return to active duty. Therefore, the PEB changed her status from temporary to permanent disability with a rating of 20%. The DD Form 214 was never corrected to reflect the final disposition of her retirement.
3. The applicant provides copies of her 1986 DD Form 214 and 1987 Formal PEB Proceedings.
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. The applicant enlisted in Regular Army on 23 January 1986. She did not complete advanced individual training and was not awarded a military occupational specialty.
3. On 20 March 1986, an informal PEB convened and considered her medical condition of bilateral ankle sprains. The PEB determined her activity limitations imposed by a permanent profile precluded adequate performance of the normal duties associated with her office, grade, rank, or rating and found her unfit for further service. The PEB recommended her placement on the TDRL.
4. On 21 March 1986, she waived her right to a formal hearing and concurred with the findings and recommendations of the PEB.
5. She was honorably retired on 12 June 1986, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e. She was credited with 4 months and 20 days of net active service. Item 28 of her DD Form 214 shows: Physical Disability, Temporary.
6. On 26 February 1987, a TDRL PEB convened and considered her medical condition of bilateral ankle sprains. The PEB adhered to the recommendation of the 20 January 1987 informal board. She was placed on the TDRL on 13 June 1986 with a 40% disability rating for bilateral ankle sprains requiring crutches for ambulation. The PEB determined her current evaluation indicated improvement in her condition although she remained unfit for military service due to the residuals of ankle sprains. Therefore, permanent disposition was considered to be appropriate.
7. Orders D84-6 issued by the U.S. Army Military Personnel Center, on 29 April 1987, removed her from removed from the TDRL because of permanent physical disability effective 14 May 1987, with a 20% disability rating, with entitlement to severance pay.
8. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. The regulation stated a DD Form 214 would be prepared for Active Army Soldiers on termination of active duty by reason of a physical disability separation. A DD Form 214 would not be prepared for Soldiers removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows she was retired from active duty by reason of temporary disability and placed on the TDRL on 12 June 1986. She was issued a DD Form 214 properly annotating this action. On 29 April 1987, she was issued orders removing her from the TDRL and permanently separating her with entitlement to severance pay.
2. There is no evidence showing she served in an active duty status after 12 June 1986 to qualify for the issuance of a subsequent DD Form 214 or that she was ever permanently retired. She was properly issued orders removing her from the TDRL effective 14 May 1987. Therefore, she is not entitled to correction to Item 28 of her DD Form 214 to show she was permanently retired on 12 June 1986 or 14 May 1987.
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) AR20130004445
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ABCMR Record of Proceedings (cont) AR20130004445
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