IN THE CASE OF:	   

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150001026 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired on 14 January 2010.

2.  The applicant states:

* he retired from the Army on 14 January 2010
* he was presented with a retirement certificate at the end of January 2010, but it is not reflected on his DD Form 214

3.  The applicant provides his Certificate of Retirement.

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 was appointed as a commissioned officer in the Regular Army and entered active duty on 29 May 2004.  He served as a field artillery officer.

3.  On 23 May 2007, he retired by reason of temporary disability and was placed on the Temporary Disability Retired List (TDRL) effective 24 May 2007.  His DD Form 214 shows his separation date as 23 May 2007 and his type of separation as retirement.

4.  U.S. Army Physical Disability Agency Orders D013-16, dated 13 January 2010, administratively removed him from the TDRL effective 13 January 2010 because of permanent physical disability and retired him effective 14 January 2010 with a 30-percent disability rating.

5.  He provided his Certificate of Retirement, dated 14 January 2010.

6.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated a DD Form 214 would not be prepared for members being removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he retired by reason of temporary disability on 23 May 2007.  He was removed from the TDRL on 13 January 2010 and permanently retired on 14 January 2010.

2.  He was issued a DD Form 214 when he retired by reason of temporary disability on 23 May 2007.  Although the reason for his retired status was later changed to permanently disability, he did not perform any active duty service following his retirement on 23 May 2007.  In accordance with regulatory guidance, a DD Form 214 is not prepared for members being removed from the TDRL and permanently retired.  There is no basis for granting the requested relief.

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 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)                                         AR20150001026



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001026



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1