IN THE CASE OF: BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150015607 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150015607 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. IN THE CASE OF: BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150015607 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 the date he was placed on the permanent disability retired list (PDRL) instead of the date he was placed on the temporary disability retired list (TDRL). 2. The applicant states his DD Form 214 shows he was placed on the TDRL on 11 April 2005. He was permanently retired on 10 July 2007. 3. The applicant provides his 2005 DD Form 214 and 2007 permanent retirement orders. 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 10 February 1987 and he held military occupational specialties (MOS) 52D (Power Generation Equipment Repairer). 3. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Germany and Bosnia, and he attained the rank/grade of sergeant (SGT)/E-5. 4. On 6 July 2004, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as having the following unacceptable medical conditions. The MEB recommended his referral to a physical evaluation board (PEB). * status post lumbosacral fusion with back and leg pain * status post cervical discectomy and fusion with decreased range of motion and pain 5. On 19 August 2004, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and MOS and determined he was physically unfit due to chronic neck pain and chronic back pain. The informal PEB: * rated his conditions and recommended a 40 percent combined disability rating * determined his conditions were not sufficiently stable for final adjudication and his disposition was placement on the TDRL * determined his disability rating and status could change while on the TDRL and informed him of a future reexamination 6. Following his counseling, the applicant elected to concur with the PEB's findings and recommendation and waived his right to a formal hearing 7. The applicant was honorably retired from the Army on 11 April 2005 and placed on the TDRL in the rank/grade of SGT/E-5 on 12 April 2005. His DD Form 214 shows: * he was retired on 11 April 2005 and had completed 18 years, 2 months, and 2 days of active service * the authority for his retirement is Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2) * his narrative reason for separation is "Disability, Temporary" 7. On 19 June 2007, following a medical examination, a TDRL PEB convened and found the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty. His condition was considered sufficiently stable for final adjudication. The PEB recommended a 40 percent combined disability rating and permanent disability retirement. He concurred. 8. On 10 July 2007, the U.S. Army Physical Disability Agency published Orders D192-17 removing the applicant from the TDRL effective 10 July 2007 and permanently retiring him by reason of permanent disability and a combined rating of 40 percent. REFERENCES: 1. AR 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 2. AR 635-5 (Separation Documents), prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. A DD Form 214 will not be prepared for Soldiers removed from the TDRL. DISCUSSION 1. The informal PEB convened in August 2004 and found the applicant's conditions were unfitting, but not sufficiently stable for final adjudication; therefore, his disposition was placement on the TDRL. He was informed that his disability rating and status could change while on the TDRL and of future reexamination. This is why he was temporarily – not permanently – retired at that time. He was placed on the TDRL on 12 April 2005; he was no longer on active duty. He was in a retired status. 2. While in a retired status, he underwent a reexamination that led to a TDRL PEB on 19 June 2007. The TDRL PEB convened and found the applicant remained unfit and his condition was considered sufficiently stable for final adjudication. The PEB recommended a 40 percent combined disability rating and permanent disability retirement. 3. A DD Form 214 is a summary of a Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge. By regulation, a DD Form 214 is not prepared for Soldiers who are removed from the TDRL, regardless of whether they are discharged or retired for permanent disability. 4. His DD Form 214 correctly shows his retirement date as 11 April 2005 and there is no reason to change it. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015607 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015607 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2