RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            30 March 2004                  
	DOCKET NUMBER:    AR2003090862

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

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Larry C. Bergquist		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that the separation code in block 28 of his report of separation (DD Form 214) be changed from "SFK" to "JFL." 

2.  The applicant states that his separation code of "SFK" for temporary disability should be changed to "JFL", to reflect his permanent disability.  He further states that the code as currently reflected does not allow him to use his Montgomery G.I. Bill entitlements because it reflects only a temporary disability.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 8 July 1995. The application submitted in this case is dated 27 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  After having served 3 years of prior active service, the applicant again enlisted on 2 May 1988 and remained on active duty through continuous reenlistments.  He was promoted to the pay grade of E-5 on 1 May 1990.

4.  On 8 July 1995, while stationed in Alaska, he was honorably released from active duty (REFRAD) and was placed on the Temporary Disability Retired List (TDRL) with a temporary disability rating of 30%.  He had served 10 years, 2 months and 7 days of total active service and was issued a separation code of "SFK" and was REFRAD under the provisions of Army Regulation 635-40, paragraph 4-24b (2).

5.  On 12 December 1996, he was removed from the TDRL and was placed on the Permanent Disability Retired List (PDRL) with a 30% disability rating under the authority of Department of the Army orders number D255-7 dated 12 December 1996.

6.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 is a summary of the soldier's most recent period of continuous active duty and provides a brief, clear cut record of active duty service at the time of release from active duty, discharge or retirement.  A DD Form 214 will be prepared for each soldier whose active duty service is terminated by reason of physical disability.  However, a DD Form 214 is not prepared nor is the previous DD Form 214 amended for personnel removed from the TDRL.  The DD Form 214 is not intended to have any legal effect on termination of a soldier's service.

7.  Army Regulation 635-5-1 provides the separation codes used on the DD Form 214, based on the authority of the separation.  It provides, in pertinent part, that the separation code "SFK" will be used for enlisted personnel who are retired by reason of temporary disability in accordance with Army Regulation 635-40, paragraph 4-24b(2).  The separation Code of "SFJ" will be used for enlisted personnel retired by reason of permanent physical disability under the provisions of Army Regulation 635-40, paragraph 4-24b(1) and the separation code of "JFL" will be used to denote personnel who are involuntarily discharged by reason of disability with severance pay under the provisions of Army Regulation 635-40, paragraph 4-24b(3).

DISCUSSION AND CONCLUSIONS:

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 this requirement.

2.  The applicant was properly released from active duty with the proper separation code at the time he was placed on the TDRL. 

3.  Inasmuch as he was not serving on active duty at the time he was removed from the TDRL and was placed on the PDRL, he was not authorized to have a new DD Form 214 issued or to have his last DD Form 214 changed to reflect his current status, because the DD Form 214 is only issued to reflect the most recent period of continuous active duty.

4.  The orders that removed the applicant from the TDRL and placed him on the PDRL serve as the authority/instrument for the applicant's current status.  Accordingly, there is no basis to change his DD Form 214 to reflect his current status.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 December 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 December 1999.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ______GRANT RELIEF 

________  ________  _____  GRANT FORMAL HEARING

__MM___  __AR__  __LB__    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		Melvin H. Meyer_
		CHAIRPERSON

INDEX

CASE ID	AR2003090862	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2004/03/30	
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         1.191	110.0200/RSN/AUTH	
2.		
3.		
4.		
5.		
6.