RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 OCTOBER 2004
      DOCKET NUMBER:   AR2004102820


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Richard Dunbar                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests physical disability retirement.  He requests
that his TDRL (temporary disability retired list) status be changed to
physical disability retirement.  He is receiving a 100 percent disability
rating from the Department of Veterans Affairs (VA).

2.  The applicant states that he was not competent when his last review
came up [periodic TDRL review].

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's completed official military personnel records are not
available, to include his DD Form 214 (Certificate of Discharge or Release
from Active Duty).  The records that are available are Medical Evaluation
Board (MEB) and Physical Evaluation Board (PEB) proceedings, and related
documents.

2.  The applicant enlisted in the Army for two years on 21 July 1987.

3.  A medical record from the Naval Hospital at San Diego, California shows
that he was admitted to the hospital on 8 January 1989 when he began having
headaches, fevers, chills, and diaphoresis.  He was treated at the hospital
and discharged on 27 January 1989 with a diagnosis of aortic insufficiency
and subacute bacterial endocarditis (SBE), with the recommendation for a
follow up in one month by cardiology, and a medical board when he was
completely evaluated.

4.  A 14 July 1989 medical record from the above-mentioned hospital shows
that the applicant was a psychiatric admission on 21 June 1989.  The record
shows that he was attached to Fort Irwin, California as a medical hold, and
that he had an aortic valve replacement in April 1989.  It shows that he
was admitted three days previously for an attack of syncope.  The applicant
reported poor appetite since the surgery, intervals in which he saw himself
dying, decreased concentration, crying spells, and the belief that he would
die from a heart attack if he exerted himself.  He reported episodes of a
racing heart, dyspnea, occasional chest pain, and panic feelings.  He was
discharged from the hospital with a diagnosis of major depression with mood
congruent psychotic features, alcohol abuse, histrionic traits, status post
aortic valve replacement, history of hyperventilation syncope, and
impotence, probably functional.  The examining psychiatrist indicated that
his disposition would be determined by the Army, but noted that
psychiatrically, the applicant risked becoming an invalid because of his
psychiatric illness, more so than the risks of becoming a cardiac invalid.

5.  In October 1989 a medical board was conducted at the San Diego Naval
Hospital.  The board diagnosed the applicant's condition as congenitally
abnormal aortic valve ETPE with subsequent episode of subacute bacterial
endocarditis; status post aortic valve replacement with 22 mm cryolite
homograft on 18 April 1989; normally functioning prosthetic valve with mild
aortic regurgitation; and major depression with mood congruent, psychotic
features, single episode, resolved.  The board indicated that the maximum
benefits of hospitalization had been achieved and that the applicant would
continue to require periodic follow-up and monitoring of his psychiatric
diagnosis as well as his cardiovascular status.  He was referred to a PEB
for final status determination.  The board report was approved on 7
November 1989.

6.  On 20 November 1989 the applicant was admitted to the Naval Hospital at
San Diego with the complaint, "I feel so helpless, why can't I feel
better."  He was discharged from the hospital on 7 December 1989 with a
diagnosis of major depression with psychotic features, resolving; situation
anxiety, resolving.  He was discharged to duty to return to Fort Irwin to
await the results of his medical board.

7.  The proceedings of the Naval Medical Board were reviewed by the Fort
Irwin Medical Department Activity.  The applicant was determined to be
medically disqualified for service.

8.  On 17 April 1990 a formal PEB met at San Francisco and determined that
the applicant was physically unfit because major depression currently in
remission and sternal pain, rated as analogous to tender painful scar
limiting lifting ability; residual of successful aortic valve replacement
for congenitally deformity with SBE episode.  The board recommended that
the applicant be separated with severance pay with a 20 percent disability
rating.  The applicant did not agree and submitted a rebuttal to the
recommendation.  On 23 April 1990 the PEB informed him that it had received
his rebuttal and that of his representative, that both letters were
carefully considered and his case reviewed; however, the PEB adhered to the
finding and recommendations of the formal hearing.  He was informed that
his case was forwarded to the Physical Disability Agency for further
processing.

9.  On 7 June 1990 the Physical Disability Agency returned the case to the
PEB for additional medical evidence.

10.  A 12 September 1990 addendum to a MEB indicates that the applicant was
diagnosed with (1) panic disorder with agoraphobia, chronic moderate,
partially treated, improved, manifested by fear of having panic attacks
away from health care providers, avoidant behavior, and fear of leaving the
hospital ward with episodic periods of palpitations, shortness of breath,
and intense fears of death; (2) major depression, recurrent, severe,
treated, partially improved, manifested by depressed mood, decreased sleep,
decreased appetite, anhedonia, weight loss, feelings of worthlessness,
hopelessness and guilt; (3) valvular heart disease (severe), treated,
partially improved, manifested by aortic insufficiency and need for repeat
surgery in the near future (myxomatous mitral valve) with probable need for
surgical correction.  The board recommended that the applicant be referred
to a PEB.  The board stated that the applicant was competent for VA and
legal purposes, and upon discharge would be followed by the VA.

11.  Another addendum, dated 1 November 1990, provided diagnoses as
indicated above, and stated that the applicant had received maximal
hospitalization benefit, and that it was likely that prolonged
hospitalization would cause his condition to deteriorate in that he would
then require extensive inpatient treatment for an iatrogenic illness.  The
examining physicians recommended that the applicant's case be evaluated as
expeditiously as possible.

12.  On 9 November 1990 a PEB determined that the applicant was medically
unfit because of panic disorder associated with history of cardiac surgery
and following an episode of major depression; productive of definite social
and industrial impairment, and recommended a disability rating of 30
percent; and medically unfit because of sternal pain rated as analogous to
tender painful scar limiting lifting ability; residual of successful aortic
valve replacement for congenitally deformity with SBE episode, and
recommended a disability rating of 10 percent.  The PEB, however, stated
that his physical and mental impairments, brought about by cardiac surgery,
were of such a nature that evaluation of a permanent degree of severity was
not possible at that time, and recommended that he be placed on the TDRL
with a disability rating of 40 percent, with a reexamination during
November 1991.  The PEB stated that the applicant should contact a VA
counselor to learn about the availability of benefits.  The PEB also
indicated that failure to report for a scheduled examination or to notify
PERSCOM (Total Army Personnel Command) of a change in address would result
in the suspension of retired pay.  On 14 November 1990 the applicant
concurred in the findings and recommendations and waived a formal hearing
of his case.

13.  On 30 November 1990 orders were published placing the applicant on the
TDRL effective on 21 December 1990 with a 40 percent disability rating.

14.  On 8 August 1991 the Physical Disability Branch, PERSCOM, notified the
applicant that his periodic medical examination was being arranged at Weed
Army Community Hospital at Fort Irwin, on or before November 1991, and that
he would be notified of the exact date, time and location of the
examination.  An order was published on 8 August 1991 for the applicant to
undergo a periodic physical examination in November 1991.  A similar order
was published on         9 September 1992 for an examination in December
1992.

15.  On 6 May 1993 Weed Army Community Hospital informed the applicant that
he had to contact that hospital within two weeks to coordinate the details
of his TDRL examination.  He was also notified that failure to do so would
result in the closure of his case, and that his pay and benefits would be
suspended.  The hospital provided him with their commercial and autovon
telephone numbers, authorizing him to call collect.

16.  On 25 April 1994 the Naval Medical Center in San Diego returned the
applicant's TDRL packet to Weed Army Community Hospital, stating that the
applicant failed to keep his appointments for 22 April 1994 with cardiology
and for 26 April 1994 with psychiatry.

17.  On 4 May 1994 the Fort Irwin Medical Department Activity returned the
TDRL packet on the applicant to PERSCOM, stating that the applicant failed
to make appointments that were made for him in August 1993, on 21 April
1994 with Weed Army Community Hospital, and the above-mentioned
appointments at the Naval Medical Center in San Diego.

18.  On 15 July 1994 the Physical Disability Branch informed the applicant
that information indicated that he did not report for his periodic physical
examination during December 1992, and that if he did not provide an
explanation for his failure to report for the examination, then no further
effort would be made to schedule him, and his eligibility to receive Army
retired pay would be terminated.
He was given 30 days to respond to the Physical Disability Branch.

19.  On 17 November 1994 the Physical Disability Branch informed him that
his eligibility to receive disability retirement pay was terminated
effective 4 December 1994 because of his failure to report for his periodic
medical examination.  He was further informed that in order that his
eligibility for retired pay to be reinstated, he had to request another
appointment for an examination and furnish a written explanation of the
reason for his failure to report for a previous examination.

20.  An order was published on 17 January 1996 removing the applicant from
the TDRL effective on 20 December 1995 without entitlement to severance
pay.  The applicant was furnished a copy of the order.

21.  Army Regulation 635-40 provides that an individual may be placed in a
TDRL status for a maximum period of 5 years when it is determined that the
individual is qualified for disability retirement under Title 10, United
States Code, section 1201, but for the fact that his or her disability is
not stable and the individual may recover and be fit for duty, or the
degree of severity may increase or decrease so as to warrant a change in
the disability rating.  A Soldier on the TDRL must undergo a period medical
examination and PEB evaluation at least once every 18 months to decide
whether a change has occurred in the disability for which the Soldier was
temporarily retired.  Medical examiners will recommend removal of the
Soldier’s name from the TDRL as soon as the Soldier’s condition permits.  A
Soldier will be removed from the TDRL and separated with severance pay if
the Soldier is unfit because of the disability from which the Soldier was
placed on the TDRL; and either the disability has stabilized at less than
            30 percent; or the disability, although not stabilized, has
improved so as to be ratable at less than 30 percent.

22.  10 U.S.C., Section 1210(a) states, "A physical examination shall be
given at least once every 18 months to each member of the armed forces
whose name is on the temporary disability retired list to determine whether
there has been a change in the disability for which he was temporarily
retired.  He may be required to submit to those examinations while his name
is carried on that list.  If a member fails to report for an examination
under this subsection, after receipt of proper notification, his disability
retired pay may be terminated.  However, payments to him shall be resumed
if there was just cause for his failure to report. If payments are so
resumed, they may be made retroactive for not more than one year."

23.  10 U.S.C., Section 1210(h) states, "If his name is not sooner removed,
the disability retired pay of a member whose name is on the temporary
disability retired list terminates upon the expiration of five years after
the date when his name was placed on that list."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on the TDRL because of panic disorder and
sternal pain as evidenced by his November 1990 PEB.  The September 1990
addendum to his MEB, however, indicated that the applicant was competent
for VA and legal purposes and upon discharge would be followed by the VA.

2.  Furthermore, the applicant has stated that he is receiving a 100
percent disability rating from the VA, which would have required medical
examinations by that agency prior to the award of any disability rating.
It would appear then, that if the applicant were able to report for VA
medical examinations, he would also have been able to do so for his TDRL
medical examinations.

3.  Notwithstanding his condition, the applicant has not provided any
evidence that he was so incompetent that he could not comply with
instructions to report for medical examinations.  He received proper
notification and instructions relative to his required medical
examinations, and was duly informed of the consequences for failure to
comply.  He failed to comply.  His termination of retired pay and removal
from the TDRL was not only required by law, but also entirely appropriate.
The applicant has provided no evidence to indicate otherwise.

4.  Consequently, his request for physical disability retirement is denied.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  __LS____  __RD ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            _____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102820                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041014                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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