IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090003701 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he was placed on the permanent retired list effective 22 June 1990 not on the Temporary Disability Retired List (TDRL).

2.  The applicant states he was permanently retired as of the date of his release from active duty on 22 June 1990.

3.  The applicant provides copies of his DD Form 214 and a Total Army Personnel Command order.

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.  The applicant enlisted in the Regular Army on 7 June 1978 and served on active duty until 22 June 1990.

3.  The record shows that the applicant was found unfit for continuation on active duty by a Physical Evaluation Board.  He was released from active duty and placed on the TDRL effective 22 June 1990.

4.  The DD Form 214 issued at that time shows his narrative reason for separation as physical disability - temporary.

5.  On 18 December 1991, the U.S. Total Army Personnel Command issued Orders D253-12 removing the applicant from the TDRL and permanently retiring him with a 50 percent disability evaluation.  The orders incorrectly show he was placed on the TDRL on 20 June 1990 not on 22 June 1990.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was permanently retired as of the date of his release from active duty on 22 June 1990.

2.  The applicant was placed on the TDRL at the time he was released from active duty, 22 June 1990, and not permanently retired until a year and a half later on 18 December 1991.

3.  The DD Form 214 correctly shows he was placed on the TDRL on 22 June 1990 and not permanently retired at that time.  No correction of the DD Form 214 is warranted

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ___X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _  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)                                         AR20090003701





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ABCMR Record of Proceedings (cont)                                         AR20090003701



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