IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20170014317 APPLICANT REQUESTS: Correction of her son's (former service member (FSM)), DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 7 January 2010 to show he was retired by reason of permanent physical disability versus retired by reason of temporary physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two-page letter addressed to a Member of Congress, dated 15 June 2017 * DD Form 214, for the period covering 3 January 1993 through 27 April 1993 * DD Form 214, for the period ending 7 January 2010 * VA Form 21-0845 (Department of Veterans Affairs (VA) – Authorization to Disclose Personal Information to a Third Party), dated 12 March 2012 * General Power of Attorney, dated 1 March 2014 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 30 January 2013 with auxiliary documents * Orders D057-10, published by the U.S. Army Physical Disability Agency, dated 26 February 2013 * Numerous VA documents including rating decisions and compensation benefits * A U.S. Army Human Resources Command (AHRC) letter, dated 18 May 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. At the time the application was received at the ABCMR, the applicant, the mother and fiduciary guardian of the FSM, states, in effect, the word "permanent" needs to replace the word "temporary" on the FSM's DD Form 214 in order for the FSM's son to utilize his GI Bill for schooling. The FSM was 100 percent permanently disabled due to his service in Iraq. The applicant in a two-page letter to a Member of Congress indicates the VA will only allow the FSM's children to utilize Post 9-11 GI Bill benefits if the word "permanent" is on his DD Form 214. 3. After a period of service in the Army National Guard, the FSM subsequently enlisted in the Regular Army on 17 April 2007 for a period of three years in the rank/grade of specialist (SPC)/E-4. 4. An informal PEB convened at Fort Lewis, Washington on 9 November 2009 and found him physically unfit for further service due to post-traumatic stress disorder (PTSD) and back pain after a diskectomy. The PEB rated him 60 percent and recommended his placement on the temporary disability retired list (TDRL) with reexamination in August 2010. He concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case. 5. The FSM was honorably retired from the Army on 7 January 2010 and placed on the TDRL in the rank/grade of SPC/E-4. His DD Form 214 shows he was retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (2), by reason of physical disability - temporary. He completed 2 years, 8 months, and 21 days of net active service. 6. A TDRL PEB convened at Fort Lewis, Washington, on 30 January 2013 and found his conditions had not improved to be considered fit for duty. The PEB rated his conditions as 80 percent and recommended that he be permanently retired. He concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case. 7. Letter Orders D057-10, issued by Chief, Operations Division, U.S. Amy Physical Disability Agency (USAPDA), dated 26 February 2013 removed the FSM from the TDRL effective 26 February 2013 and placed him on the permanent retired list 27 February 2013. 8. The applicant provides the following documents that have not been discussed above: a. A DD Form 214 showing his ARNG period of service from 3 January 1993 through 27 April 1993. b. A general power of attorney from the FSM authorizing the applicant, his mother, to handle all his general and financial business including communication regarding his VA benefits and affairs. c. Numerous VA documents listing his rating decision and compensation benefits including a letter that indicates the FSM was subsequently rated as 100 percent service- connected disabled. d. An AHRC letter, dated 18 May 2016 approving his claim for Combat-Related Special Compensation (CRSC) of 100 percent. 9. A review of the Integrated Web Service (IWS) – Soldier Management System (SMS) shows the FSM was entered in the system as a casualty on 13 June 2019. An internet search revealed the FSM passed away as a result of being hit by an automobile on or about 2 January 2019. 10. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distribution of the DD Form 214. Chapter 2 states that a DD Form 214 will not be prepared for Soldiers being removed from the TDRL. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. The FSM’s DD Form 214 correctly states that he was retired and placed on the TDRL. He was subsequently evaluated on the TDRL, determined that his disability was permanent, and permanently retired by orders. In such cases, the DD Form 214 previously issued is not subsequently amended to show permanent retirement in place of TDRL. This is correct according to regulation and law. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s DD Form 214. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, states that the Temporary Disability Retired List (TDRL) is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. It states: a. to enter in item 12b (Separation Date This Period) of the DD Form 214, the Soldier's transition date and b. a DD Form 214 will not be prepared for personnel removed from the TDRL. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170014317 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1