IN THE CASE OF:
BOARD DATE: 3 April 2014
DOCKET NUMBER: AR20130013846
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 the following amendments of his DD Form 214 (Certificate of Release or Discharge from Active Duty):
* Item 26 (Separation Code) - to show "SFJ" instead of "SFK"
* Item 28 (Narrative Reason for Separation) - to show "Disability, Permanent" instead of "Disability, Temporary"
2. The applicant states, in effect, he would like the status of his DD Form 214 changed to reflect his permanent disability retirement.
3. The applicant provides copies of his DD Form 214 and Orders D354-03.
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 10 April 2001.
3. A Physical Disability Information Report shows he was injured in the line of duty and separated for temporary disability retirement.
4. Orders 071-0001, issued by Headquarters, Defense Language Institute Foreign Language Center, dated 11 March 2004, released him from active duty on 17 April 2004 and placed him on the TDRL effective 18 April 2004.
5. He was honorably retired on 17 April 2004, under the provisions of Army Regulation 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability. His DD Form 214 lists in:
* Item 26 - SFK
* Item 28 - Disability, Temporary
6. He provided a copy of Orders D354-03, issued by the U.S. Army Physical Disability Agency, dated 20 December 2005, which removed him from the TDRL for permanent retirement on the same date.
7. Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214. It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty. The regulation stated:
* Item 26 - would list the corresponding separation program designator (SPD) code for the regulatory authority and reason for separation
* Item 28 would list the regulatory or other authority for separation
* a DD Form 214 will be prepared for Active Army Soldiers on termination of active duty by reason of a physical disability separation; a DD Form 214 will not be prepared for Soldiers removed from the TDRL
8. Army Regulation 635-5-1 (SPD Codes), in effect at the time, governed the SPD codes to be entered on DD Form 214. The regulation stated the SPD code "SFJ" would be listed for Disability, Permanent, under the provisions of Army Regulation 63540, paragraph 4-24b(1) and the SPD code "SFK" would be listed for Disability, Temporary, under the provisions of Army Regulation 63540, paragraph 4-24b(2).
DISCUSSION AND CONCLUSIONS:
1. The applicant was found physically unfit and orders were issued releasing him from active duty and placing him on the TDRL. He was issued a DD Form 214 showing he was honorably retired due to a temporary physical disability and separating him from active duty on 17 April 2004. He was appropriately assigned SPD code "SFK."
2. In accordance with regulatory guidance, a DD Form 214 will not be issued when an individual is removed from the TDRL. He was properly issued orders removing him from the TDRL for permanent physical disability in December 2005.
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) AR20130013846
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130013846
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