IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140009358 


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, amendment of the orders retiring him for permanent disability by replacing the entries "Not Applicable" with correct entries for the lines pertaining to "Disability retirement," "Basic pay," "Completed over 4 years of active service as Enl [enlisted] or WO [warrant officer]," and "Member of an armed force on 24 Sep 1975."

2.  He states, in effect, that each of the above items is applicable to him.  

3.  He provides:

* orders
* memorandum, subject:  Transmittal of Separation Documents
* DD Forms 214 (Certificate of Release or Discharge from Active Duty)

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.  On 29 December 1973, the applicant enlisted in the Regular Army (RA).  On 11 December 1975, he was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his 6-year military service obligation (MSO).  He completed 1 year, 11 months, and 13 days of net active service during this period.  

3.  Review of his records indicates he was discharged from the USAR on 28 December 1979 after completing his MSO.  

4.  On 26 August 1980, he enlisted in the USAR Delayed Entry/Enlistment Program (DEP).  On 2 October 1980, he was discharged from the DEP and he enlisted in the RA.  He continued to serve in the RA through 11 December 1997, when he was retired for temporary disability and placed on the Temporary Disability Retired List (TDRL).  

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 December 1997 shows he entered active duty on 19 October 1978; however, there are no documents in his record indicating he entered active duty on that date.  Records show 19 October 1978 is his basic active service date.  The DD Form 214 also shows 19 years, 1 month, and 23 days of net active service this period calculated based on the entry date 19 October 1978.  Based his actual RA entry date of 2 October 1980, his net active service during this period would have been 17 years, 2 months, and 10 days.  

6.  He provides U.S Army Physical Disability Agency (USAPDA) Orders D44-7, dated 5 March 2003.  The orders removed him from the TDRL effective the date of the orders and placed him on the Permanent Disability Retired List (PDRL) the following day.  He indicates the following statements listed on the orders are incorrect:

* "Disability Retirement:  Not Applicable"
* "Basic pay:  Not Applicable19 Oct 78 [sic]"
* "Completed over 4 years of active service as Enl or WO:  Not Applicable"
* "Member of an armed force on 24 Sep 75:  Not Applicable"

7.  Army Regulation 600-8-105 (Military Orders) prescribes the policies and mandated operating tasks for the orders program of the Military Personnel System.  Figure 9-24 provides instruction for orders format 692, which is used for removal of Soldiers from the TDRL and permanent retirement.  This format requires entries that include the following:

* Disability retirement:  (Enter the years, months, and days.)
* Basic pay:  (Enter the years, months, and days.)
* Completed over 4 years of active service as Enl or WO:  (Enter “Yes” or “No.”)
* Member of an armed force on 24 Sep 75:  (Enter “Yes” or “No.”)

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for amendment of the orders retiring him for permanent disability.

2.  He had 1 year, 11 months, and 13 days of net active service during his first period of RA service.  During his second period of RA service from 2 October 1980 through 11 December 1997, he completed 17 years, 2 months, and 10 days of net active service.  He completed 19 years, 1 month, and 23 days of total RA service, which is the basis for calculating his disability retirement.  Accordingly, the orders in question should be amended to show the entry "Disability retirement:  19 years, 1 month, and 23 days."

3.  All military service is used to calculate total service for basic pay.  He completed 19 years, 1 month, and 23 days of service in the RA.  He had two periods of USAR service:  one period of 4 years and 17 days and a second period of 1 month and 6 days.  Therefore, his total service for basic pay is 23 years, 1 month, and 23 days.  The orders in question should be amended to show the entry "Basic pay:  23 years, 1 month, and 23 days."  

4.  He completed over 4 years of active service as an enlisted Soldier.  The orders in question should be amended to show the entry "Completed over 4 years of active service as Enl or WO:  Yes.”

5.  He was a member of an armed force on 24 September 1975.  The orders in question should be amended to show the entry "Member of an armed force on 24 Sep 75:  Yes.”







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 amending USAPDA Orders D44-7, dated 5 March 2003, to show:

* Disability retirement:  19 years, 1 month, and 23 days
* Basic pay:  23 years, 1 month, and 23 days
* Completed over 4 years of active service as Enl or WO:  Yes
* Member of an armed force on 24 Sep 75:  Yes



      _______ _   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)                                         AR20140009358





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ABCMR Record of Proceedings (cont)                                         AR20140009358



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