MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 December 1999                   
	DOCKET NUMBER:   AR1999024454

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Mark D. Manning		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his retired pay be computed based upon 27 years of service instead of 22 years.

APPLICANT STATES:  That before he was placed on the Temporary Disability Retired List (TDRL) he was told by official at the Military Personnel Center, Fort Meade, MD and the U. S. Total Army Personnel Command (PERSCOM) that his pay entry basic date (PEBD) would be adjusted for pay purposes based on the date TDRL ends.  He was permanently retired on 25 March 1998.  He wants his PEBD adjusted for the 5-year period he was on the TDRL and paid accordingly.  He has inquired into this matter with officials at PERSCOM and has been told nothing to the contrary.  He provides an extract of the Department of Defense Pay Manual (DoDPM) as supporting evidence.  

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 12 August 1970.  

The applicant’s effective date of retirement was 31 March 1993 when he was retired by reason of a physical disability.  He was placed on the retired list, TDRL, 1 April 1993 with a disability rating of 30 percent.  He had completed 22 years, 7 months and 19 days of active service and service creditable for pay.

On 25 March 1998, the applicant was removed from the TDRL and permanently retired with a 30 percent disability rating.

In the processing of this case, an advisory opinion was obtained from the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL), Retired Pay Operations (SEE ATTACHED).  DFAS-CL stated the authority for paragraph 10101e, Volume 7B of the Department of Defense Financial Management Regulation (DoDFMR), (which superseded the DoDPM), is Title 37, U. S, Code, section 205.  DFAS-CL provided an extract of paragraph 205(a)(7)(C) which states “…Except for any period of active service…that is performed while on a retired list, …may not be included to increase retired pay.” DFAS-CL recommended his request be denied as there is no legal basis on which to increase his retired pay.

A copy of the advisory opinion was provided to the applicant.  He rebutted, stating that Title 37, U. S. Code, section 205(a)(7)(A) is the appropriate paragraph, which states (service creditable) “…all periods while on a temporary disability retired list…”

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It prescribes the function of the TDRL.  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.  Paragraph 7-2 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 but for the fact that his or her disability is determined not to be of a permanent nature and stable.  

Title 37, U. S, Code, section 205 describes the service creditable for computing the basic pay of a member of a uniformed service.

Title 10, U. S. Code, section 1201 provides that, when a member described in subsection (c) (i. e., including a member of a regular component of the armed forces entitled to basic pay) is unfit to perform the duties of his grade or rank because of a physical disability incurred while entitled to basic pay the Secretary concerned may retire the member with retired pay.

Title 10, U. S. Code, Chapter 71 governs computation of retired pay.

The DoDPM, Part one, Chapter 1, paragraph 10101 described service creditable for basic pay.

The DoDFMR superseded the DoDPM.  Volume 7B, Chapter 1, paragraph 0101 prescribes service creditable for retirement purposes.  It states that a computation of creditable service may be required at any time during a member’s military career for the purpose of retirement.  Members who incur a disability while serving on active duty may be retired, at which time a service computation is required.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant was retired effective 31 March 1993 and placed on the TDRL   1 April 1993.  At that time the required service computation was performed.

3.  The applicant’s removal from the TDRL in 1998 did not involve a return to active duty; therefore, the provisions of Title 37, U. S. Code do not apply and his retired pay has been properly computed.
4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__tnk___  __eb____  __mdm___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024052	
SUFFIX		
RECON		
DATE BOARDED	19991215	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.