BOARD DATE: 10 July 2014
DOCKET NUMBER: AR20130020541
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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show a separation code and narrative reason for separation reflecting permanent disability.
2. The applicant states that as of 11 May 2006 he has been rated permanently disabled and his DD Form 214 does not reflect his proper rating and it is affecting his entitlement to post-service education benefits.
3. The applicant provides no additional documents with his application.
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 9 June 1981. He completed his training as a cannon crewman and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 March 2000.
3. On 28 May 2002, he was honorably retired by reason of temporary disability (30%) and was placed on the Temporary Disability Retired List (TDRL). He had served 20 years, 11 months, and 20 days of active service.
4. A review of his official records failed to show orders removing him from the TDRL and permanently retiring him; however, the applicant states that he was permanently retired on 11 May 2006.
5. Title 10, U.S. Code, section 1202, provides for the placement of a member on the TDRL when the disability may be permanent. Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, U.S. Code, section 1201.
6. Army Regulation 635-5 serves as the authority for the preparation of the
DD Form 214. It provides, in pertinent part, that the DD Form 214 is a summary of the Soldiers 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. Service on the TDRL is not creditable service. The
DD Form 214 is not intended to have any legal effect on termination of a Soldiers service. A DD Form 214 will NOT be prepared for Soldiers removed from the TDRL, and changes to that form will not be made retroactively unless the event occurred during the period covered by the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. At the time the applicant was retired and transferred to the TDRL his disabilities were not considered stable enough to make a valid determination and were deemed to be temporary. Accordingly, he was retired and issued a DD Form 214.
2. At the time the applicant was removed from the TDRL he was not on active duty and thus he was not entitled to receive another DD Form 214 or to have his previous DD Form 214 altered to reflect subsequent actions that occurred after his removal from the TDRL.
3. Accordingly, there appears to be no basis to grant the applicants request as his DD Form 214 correctly reflects information that was in effect at the time the DD Form 214 was prepared.
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) AR20130020541
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