BOARD DATE: 19 November 2013
DOCKET NUMBER: AR20130005766
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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she retired by reason of permanent disability effective 27 September 2007.
2. The applicant states she was placed on the Temporary Disability Retired List (TDRL) in October 2002 and remained on the TDRL until September 2007 when she was permanently retired.
3. The applicant provides copies of her DD Form 214, orders placing her on the TDRL and removing her from the TDRL, retirement certificate, and physical evaluation board 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 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 was serving on active duty as a U.S. Army Reserve (USAR) captain when she was honorably retired by reason of temporary disability on 12 October 2002 and she was placed on the TDRL effective 13 October 2002.
3. On 27 September 2007, she was removed from the TDRL and she was retired by reason of permanent disability on 28 September 2007.
4. Army Regulation 635-5 (Separation Documents) serves as the authority for preparation of the DD Form 214. It provides that the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service. Paragraph 2-1b states a DD Form 214 will not be prepared for Soldiers removed from the TDRL or subsequently retired by reason of permanent disability.
DISCUSSION AND CONCLUSIONS:
1. At the time the applicant was retired by reason of temporary physical disability and placed on the TDRL, her disabilities were considered to be too unstable for a final determination. Accordingly, she was temporarily retired and properly issued a DD Form 214 for her active duty service.
2. Service on the TDRL is not creditable active service. At the time the applicant was removed from the TDRL, she had performed no further active duty service and therefore did not meet the criteria for issuance of a subsequent DD Form 214 or a correction to reflect a change in TDRL status. The applicable regulation specifically states a DD Form 214 will not be prepared for Soldiers removed from the TDRL.
3. In view of the foregoing, there appears to be no basis to grant the applicant's request. Her DD Form 214 correctly reflects the totality of her active duty service.
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) AR20130005766
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ABCMR Record of Proceedings (cont) AR20130005766
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