MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            24 October 2000   
	DOCKET NUMBER:   AR2000042010

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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:  In effect, that item 23 (type of separation) on his DD Form 214 (Certificate or Release or Discharge from Active Duty) be corrected to show something other than “retirement” and that item 28 (narrative reason for separation) be corrected to show that he was not retired from active duty and that his separation was not the result of a temporary physical disability.  He states, in effect, that he was removed from the disability list in 1985 and because of the information contained on his DD Form 214 he is unable to have his military time credited toward his civil service retirement.  In support of his request he submits a self-authored statement.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

He enlisted and entered active duty for a period of 3 years on 7 August 1980.  On 15 April 1982 the applicant was involved in a motorcycle accident which resulted several conditions which rendered him “unfit for retention” according to a Physical Evaluation Board (PEB) convened in November 1983.  The applicant agreed to be retained on active duty beyond his scheduled 6 August 1983 separation date in order to complete disability processing.  

The November 1983 PEB concluded, however, that the applicant’s medical conditions were not sufficiently stable “for a determination of a final degree of impairment” and as such recommended that his name be placed on the Temporary Disability Retired List (TDRL).  The applicant concurred and the findings and recommendation of the PEB were approved.

On 14 December 1983 orders, using format 610, were published relieving the applicant “from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions which permit your placement on the Temporary Disability Retired List.”  His “effective date of retirement” was 
21 December 1983 and his name was “placed on [the] retired list” effective 
22 December 1983 in accordance with the provisions of paragraph 4-24e(2), Army Regulation 635-40, which established the policies and provisions for the separation/retirement of soldiers, based on physical disability.

In accordance with the provisions of Army Regulation 635-5, then in effect, item 23 (type of separation) on his DD Form 214 reflected “retirement” and item 28 (narrative reason for separation), in accordance with Army Regulation 635-5-1, then in effect, reflected “physical disability-temporary.”

In July 1985 a PEB concluded that the applicant’s condition had stabilized sufficiently for rating purposes and recommended the applicant’s name be removed from the TDRL.  On 18 September 1985 the applicant’s name was removed from the TDRL with a final rating of 20 percent and entitlement to severance pay.

Army Regulation 635-5, then in effect, stated that item 23 on the DD Form 214 would reflect “retirement” when orders format 610 was utilized to confirm an individual’s release from active duty.

Army Regulation 635-5-1, then in effect, stated that item 28 would reflect “physical disability-temporary” when an individual was separated under the provisions of paragraph 4-24e(2), Army Regulation 635-40.

Army Regulation 635-5 also states, in pertinent part, that a separation report (DD Form 214) will be prepared at the conclusion of a period of active Federal service.  An individual whose name is placed on the TDRL is considered to have been released from active Federal service and as such is issued a DD Form 214. While on the TDRL individuals do not accumulate active Federal service and as such when their names are removed from the TDRL a new DD Form 214 is not issued, as they are not in an “active” status.  

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 22 December 1983, the date the applicant’s name was placed on the TDRL.  The time for the applicant to file a request for correction of any error or injustice expired on 22 December 1986.

The application is dated 26 April 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__esc___  ____jtm_  ___mp___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000042010	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.