IN THE CASE OF:	  

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140020326 


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 corrections to her DD Form 214 (Certificate of Release or Discharge from Active Duty):

* item 23 (Type of Separation) to show she was not retired
* item 26 (Separation Code) to show a code other than SFK
* item 28 (Narrative Reason for Separation) to show permanent disability

2.  The applicant states:

* she was not retired
* she was removed from the Temporary Disability Retired List (TDRL) on 12 April 2001
* she is unable to receive credit for her military service because her DD Form 214 lists her as retired
* she needs an updated DD Form 214 to show her as separated, not retired
* item 26 of her DD Form 214 shows a separation code of SFK with a retired separation status

3.  The applicant provides:

* DD Form 214
* orders removing her from the TDRL, dated 12 April 2001
* email correspondence, dated 19 November 2014



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 November 1992 and trained as a helicopter repairer.  On 15 August 1998, she retired by reason of temporary disability and was placed on the TDRL the following day.

3.  Her DD Form 214 shows the following entries:

* item 23 – Retirement
* item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Paragraph 4-24b(2)
* item 26 – SFK
* item 28 – Disability, Temporary

4.  U.S. Army Physical Disability Agency (USAPDA) Orders D71-8, dated 12 April 2001, removed her from the TDRL and discharged her from the service because of permanent physical disability (0 percent) with entitlement to severance pay effective 12 April 2001.

5.  Army Regulation 635-40, paragraph 3-9, provides that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

6.  Army Regulation 635-40, paragraph 4-24b(2), provides that the USAPDA will issue retirement orders or other disposition instructions based upon the final decision of the USAPDA, including permanent retirement for physical disability, placement on the TDRL, or separation for physical disability with or without severance pay.

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparation of the DD Form 214.  It stated a DD Form 214 will not be prepared for Soldiers removed from the TDRL.  It also stated to enter one of the following entries in item 23 of the DD Form 214 for enlisted personnel:

* release from active duty
* discharge
* retirement
* release from active duty and order to additional active duty
* release from active duty for training
* release from custody and control of the Army
* release from active duty for training and discharge from the Reserve of the Army and return to Army National Guard

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The reason for discharge based on SPD code SFK is "Disability, Temporary" and the regulatory authority is Army Regulation 635-40, paragraph 4-24b(2).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to amend items 23, 26, and 28 of her DD Form 214 was noted.  However, the evidence shows she retired on 15 August 1998 by reason of temporary disability and she was placed on the TDRL the following day which is properly reflected on her DD Form 214.

2.  Her type of separation, separation code, and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of her retirement.

3.  She was removed from the TDRL and discharged from the service because of permanent physical disability (0 percent) with entitlement to severance pay effective 12 April 2001.  These orders are her ultimate separation from the Army.  A DD Form 214 will not be prepared for Soldiers removed from the TDRL.

4.  The applicant may use those TDRL removal and discharge orders and this Record of Proceedings to verify that she was temporarily retired during the period 16 August 1998 to 12 April 2001.  As of 13 April 2001, she was no longer an Army retiree.

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)                                         AR20140020326



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ABCMR Record of Proceedings (cont)                                         AR20140020326



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