BOARD DATE: 2 October 2014
DOCKET NUMBER: AR20140002149
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, in effect, issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was removed from the Temporary Disability Retired List (TDRL).
2. The applicant states:
a. He has been notified by the Department of Defense that he has not been released from the TDRL as yet, although no TDRL payments have been issued.
b. He was informed that he needed to contact the military records correction department to release his DD Form 214.
3. The applicant provides no additional evidence.
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 4 May 1992 and trained as an infantryman. On 16 July 1993, he was retired by reason of temporary disability and placed on the TDRL the following day. His DD Form 214 shows he retired on 16 July 1993.
3. His records contain:
a. a letter from the U.S. Army Physical Disability Agency Physical Disability Branch, dated 6 March 1996, which states his eligibility to receive disability retirement pay was terminated effective 7 April 1996 because of his failure to report for his periodic medical examination; and
b. a memorandum from the U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, dated 7 July 1999, which states the applicant is no longer on TDRL and should be administratively removed. The effective date of removal was 9 July 1999.
4. U.S. Army Physical Disability Agency Orders D239-23, dated 12 December 2000, administratively removed him from the TDRL without entitlement to severance pay because he failed to complete a scheduled physical reexamination as required by law.
5. Army Regulation 635-5 (Separation Documents), in effect at the time, stated a DD Form 214 would not be prepared for members being removed from the TDRL.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant implies he has not been released from the TDRL, the evidence shows he was removed from the TDRL on 12 December 2000 because of his failure to report for his periodic medical examination. These orders are his ultimate discharge from the Army. A copy of these orders will be provided to the applicant.
2. Since a DD Form 214 is not prepared for members being removed from the TDRL, there is no basis for granting 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) AR20140002149
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