BOARD DATE:   10 March 2015

		DOCKET NUMBER:  AR20140011748 


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 his records to show he was removed from the Temporary Disability Retired List (TDRL) and permanently retired due to physical disability effective 27 March 1984.  He also requests retired pay from 27 March 1984 to present. 

2.  The applicant states that:

	a.  He was placed on the TDRL on 17 February 1982 due to a back condition. He received a DD Form 214 (Certificate of Release or Discharge from Active Duty), a military identification card with an indefinite expiration date and a Certificate of Retirement from the U.S. Army.

	b.  On 10 November 1983, he was ordered to Cutler Army Hospital, Fort Devens, Massachusetts, for an updated physical.  The physical was conducted on 15 December 1983 and he was found not qualified for retention.

	c.  On 13 March 1984, he received a letter from the Department of the Army, Alexandria, Virginia, stating he was being removed from the TDRL and permanently retired.  His instructions were to contact the nearest Army installation for a retired identification and privilege card.  He also received a separate letter taking him directly off the TDRL as of 27 March 1984 with a 30 percent disability rating. 

	d.  He did not pursue retired pay benefits until now and requests reinstatement on the retired list due to permanent disability as of 18 February 1987.

3.  The applicant provides copies of his:

* Headquarters, Medical Department Activity, Fort Campbell, Kentucky, letter, Subject:  Medical Addendum, dated 5 January 1982
* U.S. Army Military Personnel Center, Alexandria, Virginia, letter, Subject: Disability Retirement, dated 3 February 1982
* TDRL orders effective 18 February 1982
* DD Form 214 ending 17 February 1982
* Certificate of Retirement
* retired Uniform Services Identification Card
* attachment orders for TDRL physical examination, dated 10 November 1983
* Report of Medical History and Report of Medical Examination, dated 15 December 1983, with Clinical Record Narrative Summary
* U.S. Army Medical Department Activity letter, Subject:  Report for Periodic Physical Examination - TDRL, dated 11 January 1984 
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 3 February 1984
* U.S. Army Military Personnel Center, Alexandria, Virginia, letter, Subject:  Transmittal of Separation Documents, dated 13 March 1984 
* U.S. Army Finance and Accounting Center, Indianapolis, Indiana, letter, dated 12 March 1987
* U.S. Army Physical Disability Agency, Arlington, Virginia, letter dated 10 June 2014, to his U.S. Senator
* letter from his U.S. Senator

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 basis to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army on 31 May 1979.  He completed his training and was awarded military occupational specialty 11B (Infantryman).

3.  The applicant's medical evaluation board proceedings placing him on the TDRL are not available for the Board's review.  A medical addendum shows he sustained a residual compression fracture T11-12, equivalent to thoracic spine facet arthritis, symptomatic following fusion of his T11 - L1 of his spine.  The addendum stated he was unfit for duty and unfit as a general laborer.  The addendum recommended placement on the TDRL.  U.S. Army Military Personnel Center, Alexandria, Virginia, Orders D23-13, dated 3 February 1982; show the applicant was released from assignment and duty and placed on the TDRL effective 18 February 1982 as a specialist four/E-4 with a 30 percent disability rating.

3.  His DD Form 214 shows he was placed on the TDRL effective 18 February 1982.

4.  He provides a copy of orders showing he was attached to Cutler Army Hospital, Fort Devens, Massachusetts, effective 15 December 1983, to undergo a periodic physical examination.

5.  On 3 February 1984, a PEB found him physically unfit with a combined rating of 30 percent based on residuals of compression fracture of T11 - T12 post T11 - L1 fusion with unfavorable ankylosis.  The PEB also found his condition stabilized for rating purposes and recommended permanent retirement in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He concurred and waived a formal hearing of his case.

6.  His record contains a copy of U.S. Army Military Personnel Center, Alexandria, Virginia, Orders 049-5, dated 13 March 1984, showing he was removed from the TDRL and permanently retired due to permanent physical disability effective 27 March 1984 with a disability rating of 30 percent.

7.  By letter dated 12 March 1987, the U.S. Army Finance and Account Center, Indianapolis, Indiana informed the applicant his retired pay was terminated.  The letter informed him that a Soldier may be carried on the TDRL for a maximum of 5 years.  The letter further stated the center had not received any applicable orders reflecting a change in his status and asked him to provide a copy to ensure continued receipt of retired pay. 

8.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 7 outlines procedures for administration and processing of Soldiers whose names are on the TDRL.  It provides that a Soldier’s name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, U.S. Code, section 1201 (10 USC 1201), but for the fact that his or her disability is determined not to be of a permanent nature and stable.  It further states that TDRL status is authorized for a maximum of 5 years, but permanent disposition may be made at an earlier date.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was placed on the TDRL effective 18 February 1982.

2.  He was ordered to undergo a periodic physical examination as required by law.  A PEB found he was physically unfit with a combined rating of 30 percent and recommended permanent retirement.  

3.  U.S. Army Military Personnel Center, Alexandria, Virginia, Orders 049-5, dated 13 March 1984, show he was removed from the TDRL and permanently retired due to permanent physical disability effective 27 March 1984 with a disability rating of 30 percent.  It appears he was in receipt of retired pay from the date of placement on the TDRL to 18 February 1987 when his retired pay was terminated by the U.S. Army Finance and Accounting Center due to lack of orders showing he was placed on the permanent disability retired list.  His retired pay was terminated by law at the time.  

4.  The applicant readily admits in his statement to the Board that he failed to follow through in 1987 when his retired pay stopped.  He now requests reinstatement of his retired pay effective 18 February 1987, the date his TDRL retired pay stopped.  

5.  The available evidence supports the applicant's contention that he was placed on the permanent disability retired list effective 27 March 1984 and that he received retired pay through 18 February 1987 based on his TDRL status.  For unknown reasons, the U.S. Army Finance and Accounting Center did not receive his permanent retirement orders.  As a matter of equity, it would be appropriate to correct his record to show the center received his permanent retirement order in a timely manner to continue his retired pay effective 19 February 1987 to present.   


BOARD VOTE:

___X_____  __X______  __X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he was removed from the TDRL and permanently retired due to physical disability effective 27 March 1984; and

	b.  requesting the Defense Finance and Accounting Service review his financial pay records and reinstate his retired pay effective 19 February 1987 to the present.



      _________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)                                         AR20110010197



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011748



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1