BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160001493 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: 12 October 2017 DOCKET NUMBER: AR20160001493 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: 12 October 2017 DOCKET NUMBER: AR20160001493 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 item 23 (Type of Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show "Honorable" vice "Retirement." 2. The applicant states he was on the temporary disability retired list (TDRL) at the time of his discharge. He received an honorable discharge and his DD Form 214 should state this. The entry in item 23 of this form has never been as issue until he began working for the Federal government. This is an error because he is not retired. He is unable receive full benefits from his current civilian employment because of the entry in item 23. He wishes to obtain additional time for leave days he acquired in the military. He was advised that since item 23 contained the entry "Retirement" his agency was unable to determine whether or not his discharge was honorable even though it clearly states so in item 24 (Character of Service) of his DD Form 214. He served on active duty for 10 years and was honorably discharged. He would like to receive the basic entitlement and the accrued time within his present (civilian) employment. 3. The applicant provides copies of his DD Form 214 and five letters from the Department of Veterans Affairs (VA). 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of this cases 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 sufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army on 26 January 1982 and he held military occupational specialty 76Y (Unit Supply Specialist). He served continuously on active duty through several reenlistments in various assignments. 3. On 18 December 1991, an informal physical evaluation board (PEB) found him unfit for further military service and recommended his placement on the TDRL with a combined rating of 40 percent. On 30 December 1991, he did not concur with the findings and recommendations of the informal PEB and requested a formal hearing. 4. On 6 January 1992, by a written statement the applicant withdrew his request for a formal hearing and concurred with the findings and recommendations of the PEB. The board was approved on 11 January 1992. 5. Orders Number D16-3, issued by the U.S. Total Army Personnel Command on 22 January 1992, directed his release from active duty effective 12 February 1992 and placement on the TDRL effective 13 February 1992. 6. He was honorably retired on 12 February 1992, under the provisions of Title 10, U.S. Code (USC), section 1202. He was credited with completing 10 years, 10 months, and 17 days of active service. His DD Form 214 lists in: * Item 23 – Retirement * Item 24 – Honorable * Item 28 (Narrative Reason for Separation) – Physical Disability Temporary 7. On 4 October 1993, a TDRL PEB convened and recommended his retention on the TDRL with reexamination during July 1995. The PEB was approved on 7 October 1993. 8. Orders Number D66-1, issued by the U.S. Total Army Personnel Command on 3 April 1997, administratively removed him from the TDRL effective 12 February 1997, for failure to complete a scheduled reexamination required by law. 9. He provided copies of five letters, dated 19 April 2012, 1 December 2014, 13 May 2015, and 5 May and 11 August 2016, wherein the VA advised him of the establishment of his Veteran's preference for his civil service employment and summaries of his VA benefits. Each letter refers to his character of service as honorable. REFERENCES: 1. Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 was a synopsis of the Soldier's most recent period of continuous active duty and provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. The regulation stated: * Item 23 – would list the type of separation * Item 24 – would list the character of service * Item 28 – would list the regulatory or other authority for separation 2. AR 635-8 (Personnel Separations – Separation Processing and Documents) currently in effect, states in paragraph 5-2 a DD Form 214 will not be prepared for Soldiers removed from the TDRL. 3. Title 10, USC, section 1202, states upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title. DISCUSSION: 1. A PEB found the applicant unfit for further service and recommended his placement on the TDRL. Orders were published releasing him from active duty and placing him on the TDRL. He was issued a DD Form 214 showing he was honorably retired due to a temporary physical disability on 12 February 1992. 2. While on the TDRL, he did not perform any active service. He was in a retired status. Orders were issued removing him from the TDRL effective 12 February 1997, due to his failure to complete a physical reexamination required by law. By regulation, a DD Form 214 will not be issued when an individual is removed from the TDRL. 3. His type of separation (item 23) and narrative reason for his February 1992 separation are administratively correct and in conformance with applicable regulations at the time of his separation. He may use his TDRL removal orders and this Record of Proceedings to verify that he was only temporarily retired during the period from 13 February 1992 to 12 February 1997. As of 13 February 1997, he was no longer considered an Army retiree and, in fact, was discharged from the Army as of that date. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001493 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001493 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2