ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180000444 APPLICANT REQUESTS: his removal from the temporary disability retirement list (TDRL) be changed to discharge from active duty and add his Aviation Badge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * orders D106-20, TDRL placement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) * letter and orders D179-10, removal from TDRL * DA Form 3713 (Data for Retired Pay) * letter corrected copy, removal from TDRL FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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. The applicant states the Department of the Army changed the Aircraft Crewman Badge dated 29 February 2000, allowing all aviation military occupational specialties (MOS) eligible for the Aviation Badge retroactive to 1949. 3. The applicant provides: a. Orders D106-20, dated 1 June 1983, shows he was retired on 16 June 1983 and placed on the TDRL on 17 June 1983. b. His DD Form 215, dated 7 July 1983, shows his reenlistment code was updated from NA to RE 4. c. Letter subject: Removal from the TRDL (Physically Fit), dated 23 September 1985, issued by the U.S. Army Military Personnel Center (MPC), Alexandria, VA, states he was removed from the TDRL pursuant to orders D179-10, see below. d. Orders D179-10, issued by the U.S. Army MPC, Alexandria, VA, states he was found fit for duty and was removed from the TDRL on 7 October 1985. e. DA Form 3713, dated 23 September 1985, shows in block 36 (Remarks), removed from TDRL physically fit effective 7 October 1985. f. Letter subject: Removal from the TRDL (Physically Fit), dated 15 October 1985, issued by the U.S. Army MPC, corrected letter dated 23 September 1985 in paragraph 3b above. The commander’s address changed and the applicant’s state changed from WY to NY. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 November 1981. He was awarded MOS 68G (Aircraft Structural Repairman) on 25 May 1982. He was assigned to 200th Aviation Company, Fort Sill, OK from 6 June 1982 to 15 June 1983. b. Orders D106-20, dated 1 June 1983, issued by the U.S. Army MPC, Alexandria, VA, shows he was relieved from assignment and duty because of physical disability incurred while entitled to basic pay. He was retired on 16 June 1983 and placed on the TDRL on 17 June 1983. c. He was honorably retired on 16 June 1983 under the provisions of Title 10 USC 1201, for temporary disability, retirement. He completed 1 year, 7 months, and 14 days of net active service this period. His DD Form 214 shows in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons), the Army Service Ribbon. d. Letter subject: Removal from the TRDL (Physically Fit), dated 23 September 1985, issued by the U.S. Army MPC, Alexandria, VA, states he was removed from the TDRL. On the effective date of removal he was afforded the opportunity to reenlist. If he declined to reenlist he was required to complete his reserve obligation. e. Medical Board Proceedings, dated 23 July 1985, shows the applicant failed to make an election and did not request an extension. f. Orders D179-10, issued by the U.S. Army MPC, Alexandria, VA, states he was found fit for duty and was removed from the TDRL on 7 October 1985. 5. By regulation, Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement or Separation): a. Paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, USC, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. b. Paragraph 7-7 (Prompt removal from the TDRL), medical examiners and adjudicative bodies will carefully evaluate each case. They will recommend removal of the member's name from the TDRL as soon as the member's condition permits. Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed by Section 1210 of Title 10 USC. 6. AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army, to include placement on the TDRL. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. There are no provisions allowing for the addition to the DD Form 214 of achievements or transactions accomplished subsequent to the period covered by the DD Form 214. Paragraph 1-4a, a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from the Active Army. Paragraph 1-4b (3), a DD Form 214 will not be prepared for member being removed from the TDRL. 7. AR 600-8-22 (Military Awards), permanent award of the Basic Aviation Badge is authorized for MOS 68 graduates after 31 December 1985 through 30 September 2003. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted because: a. Board members noted that his DD Form 214 accurately reflects his last status which was his assignment to the TDRL. In the Board’s view, there is no reason to change it. He was retired on 17 June and became a retired person (NOT on active duty) after that date. The DD Form 214 is a record of active service, not retired service. b. As for the aviation badge, a member qualifies for this badge if he received the MOS qualification during the period December 1985 to September 2003. Based upon the applicant’s service being outside the qualifying window for the award, the Board concluded there was no evidence of an error or injustice which would warrant changing the applicant’s military record. ? 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 (USC), section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement or Separation), in effect at the time, establishes the Army Physical Disability Evaluation System according to the provisions of chapter 61 of Title 10 USC and Department of Defense Directive 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating. a. Paragraph 7-2, provides that an individual may be placed on the Temporary Disability Retired List (TDRL) (for the maximum period of 5 years which is allowed by Title 10, USC, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. b. Paragraph 7-7 (Prompt removal from the TDRL), medical examiners and adjudicative bodies will carefully evaluate each case. They will recommend removal of the member's name from the TDRL as soon as the member's condition permits. Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed by Section 1210 of Title 10 USC. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army, to include placement on the TDRL. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. There are no provisions allowing for the addition to the DD Form 214 of achievements or transactions accomplished subsequent to the period covered by the DD Form 214. Paragraph 1-4a, a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from the Active Army. Paragraph 1-4b (3), a DD Form 214 will not be prepared for member being removed from the TDRL. 4. Army Regulation 600-8-22 (Military Awards), in effect at the time, prescribes the Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. To be eligible for award of the Basic Aviation Badge, individuals must meet one of the following criteria: a. Permanent award of the Basic Aviation Badge is authorized for military occupational specialty 68 graduates after 31 December 1985 through 30 September 2003. b. Be on flying status in accordance with AR 600–106 (Personnel General - Aeronautical Designations and Flying Status for Army Personnel) (see flying status for nonrated personnel) or granted a waiver by Headquarters, HRC (AHRC–PDP–I), and have performed aerial observer, crewmember, nonrated, or noncrewmember flying duties for not less than 12 months (not necessarily consecutive) or by logging not less than 48 flight hours (whichever comes first). c. Be on flying status in accordance with AR 600–106 (see flying status for nonrated personnel) or granted a waiver by Headquarters, HRC (AHRC–PDP–I), and assigned to a Joint Service Airborne Command Post, serving as a member of an operational team for no less than 12 months (not necessarily consecutive) or by logging not less than 48 flight hours (whichever comes first). d. Have been incapacitated from further flight duty by reason of being wounded as a result of enemy action, or injured as the result of an aircraft accident for which he or she was not personally responsible, or has participated in at least 15 combat missions, under probable exposure to enemy fire while on flying status in accordance with AR 600–106 (see flying status for nonrated personnel) and while serving in a valid paragraph and line number as coded in the Army Authorization Documents System. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180000444 4 1