MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  13 January 2000
	DOCKET NUMBER:   AR1999025926

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Margaret V. Thompson		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 from his permanent retirement on 13 July 1995 versus his placement on the Temporary Disability Retired List (TDRL) effective 1 October 1993.

APPLICANT STATES:  That when he was placed on the TDRL his retired pay was computed with 25 years and 2 months active Federal service (AFS).  Since he was not permanently retired until 13 July 1995 his retired pay should be based on credit for 27 years AFS.

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

He was commissioned a second lieutenant from ROTC and placed on active duty effective 14 July 1968.  He continued to serve on active duty and was promoted to grade O-5 effective 1 April 1985.

The available record indicates that he was originally scheduled for involuntary retirement effective 31 August 1992 based on his selection by a Selective Early Retirement Board.  That retirement was revoked based on action by this Board and he continued to serve on active duty pending a medical determination of fitness for retirement or retirement by reason of physical disability.

Effective 30 September 1993 he was separated by reason of temporary physical disability rated at 30 percent and placed on the TDRL effective 1 October 1993 with receipt of retired pay based on 25 years and 2 months AFS.

Effective 12 July 1995 the applicant was removed from the TDRL and placed on the retired list effective 13 July 1995 by reason of permanent physical disability rated at 10 percent.  A new DD Form 214 was not issued since one was issued at the time of his initial retirement on 30 September 1993.

In similar cases the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL), Retired Pay Operations has stated that 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.  That regulation 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 has recommended in previous cases that the request be denied, as there is no legal basis on which to increase retired pay.

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, 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, 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 30 September 1993 and placed on the TDRL 1 October 1993.  At that time the required service computation was performed.

3.  The applicant’s removal from the TDRL in 1995 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

__EW___  ___EL___  __MT____  DENY APPLICATION

						Karl F. Schneider
			                Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025926	
SUFFIX		
RECON		
DATE BOARDED	20000113	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.10	
2.	128.14	
3.		
4.		
5.		
6.