BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000616 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 BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000616 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. BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000616 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 was placed on the permanent disability retired list (PDRL) instead of the temporary disability retired list (TDRL). 2. The applicant states, in effect, he was initially placed on the TDRL in 2006 and, based on orders, was permanently retired on 27 March 2009. He would like his DD Form 214 corrected to reflect this change. 3. The applicant provides Orders Number D086-05, dated 27 March 2009, and his DD Form 214, ending 29 May 2006. 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 3 December 1993. He held military occupational specialty 91W (Healthcare Specialist). 3. Orders Number 116-006, dated 27 April 2006, issued by Headquarters, Tripler Army Medical Center, released the applicant from active duty due to physical disability. It showed he was retired on 29 May 2006 and placed on the TDRL effective 30 May 2006 with a combined disability rating of 30 percent. 4. His DD Form 214 shows he was honorably retired on 29 May 2006. Item 28 (Narrative Reason for Separation) states the reason as disability, temporary. He completed 12 years, 5 months, and 27 days of net active creditable service. 5. On 17 March 2009, a physical evaluation board (PEB) reevaluated the applicant's medical conditions and determined he should be removed from the TDRL. The PEB further recommended permanent retirement at a combined disability rating of 30 percent. 6. Orders Number D086-05, dated 27 March 2009, issued by the U.S. Army Physical Disability Agency, removed the applicant from the TDRL and permanently retired him, placing him on the PDRL effective 27 March 2009. REFERENCES: 1. Army Regulation (AR) 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures for the completion of the DD Form 214. Paragraph 2-1 (Preparing the DD Form 214) stated the DD Form 214 provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. Soldiers removed from the TDRL will not have a DD Form 214 prepared to reflect that change in status. 2. AR 635-40, in effect at the time, established the Army PDES and set forth policies, responsibilities, and procedures that governed the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. a. The TDRL was used in the nature of a "pending list." By law, Soldiers could be placed on the TDRL for a period of no more than 5 years. The PEB recommends placement on the TDRL when it determined: * the Soldier was unfit for continued military service * their condition(s) were considered to either be temporary or unstable in nature * at the time of placement on the TDRL, they were eligible for a disability rating of 30 percent or more b. Soldiers on the TDRL underwent periodic medical examinations which determined if the condition(s) had stabilized. If considered stable, a PEB would then, prior to the expiration of the 5-year time limit, make a final rating determination. c. If the PEB found the condition was still unfitting, it then made an assessment as to an appropriate disability rating. If the rating was 30 percent or more, the Soldier could be placed on the PDRL. If less than 30 percent, the Soldier could be separated with severance pay. DISCUSSION: AR 635-5 requires the DD Form 214 to show the basis for separation at the time of the event. He was not removed from the TDRL and placed on the PDRL until March 2009, more than 2 years after he separated. a. When the PEB determines that a member's disabilities or conditions are not sufficiently stable for final adjudication, and the member's combined disability rating is 30 percent or more, the member's disposition typically is placement on the TDRL. A member's disability rating and status could change while on the TDRL. In the applicant's case, in 2006, the PEB determined his conditions were not sufficiently stable for final adjudication. That is why he was placed on the TDRL. b. At some point in 2009, his case was considered by a TDRL PEB. The TDRL PEB determined that his conditions were sufficiently stable for final adjudication. The PEB recommended removal from the TDRL, and placement on the PDRL as his final disposition. c. A DD Form 214 is a summary of a Soldier's most recent period of continuous active service. A DD Form 214 is not prepared when Soldiers are removed from the TDRL, regardless of whether they are discharged or retired for permanent disability. His DD Form 214 correctly shows his temporary retirement and placement on the TDRL as of 30 May 2006. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000616 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000616 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2