RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 September 2005
      DOCKET NUMBER:  AR20040010618


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, in effect, that upon removal from the temporary
disability retired list (TDRL), the record be changed to show that he was
permanently retired for disability with a 30 percent disability rating for
a psychiatric disorder.

2.  The applicant states, in effect, that he missed his final examination
for disability retirement due to hospitalization for the same disorder that
he was placed on the temporary disability retired list (TDRL) for.

3.  The applicant provides, through his counsel, a copy of:

      a.  a letter from the U.S. Army Physical Disability Agency, dated 22
January 2004, to his congressional representative that states that because
the applicant is no longer in the service he must seek relief from the Army
Board for Correction of Military Records (ABCMR) concerning his request for
a reevaluation;

      b.  a letter, dated 8 August 2003, from the Department of Veterans
Affairs Maryland Health Care System (VAMHCS) that states the applicant was
unable to report to a 10 December 1996 examination due to severe symptoms
of depression, panic attacks, and phobic avoidance behavior that was
preventing him from being able to leave his home most of the time.  The
letter also stated that the applicant was experiencing side effects from
medications that were being used to treat his symptoms, making it more
difficult for him to travel;

      c.  Department of Veterans Affairs (DVA) Rating Decision, dated 29
May 1997, wherein the applicant's evaluation of psychiatric disorder was
continued
at 50 percent disabling.  Listed as evidence is a DVA examination dated 30
April 1997.  According to the rating decision, the DVA examination showed
that the applicant "presently works loading truck 40 hours a week"; and

      d.  the applicant's DD Form 214 (Certificate of Release or Discharge
from Active Duty) with a separation date of 1 May 1992.

4.  The applicant elected the Disabled American Veterans (DAV) as his
counsel.

5.  On 24 August 2005, the Army Board for Correction of Military Records
notified the DAV of the applicant's pending application and requested that
they review his records within 30 days.  However, the DAV has not provided
a brief.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 1 May 1997, the date of his removal from the TDRL.  The application
submitted in this case is dated 28 October 2004 and was received on
1 December 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show that he initially enlisted in the
Army National Guard and on 18 August 1988 entered active duty for training.
 He was released from active duty for training on 17 March 1989 and on 18
September 1989 the applicant enlisted in the U.S. Army for a period of 4
years.

4.  On 24 January 1992, a Medical Evaluation Board (MEB) found the
applicant unfit for duty due to major depression, single episode and
referred him to a Physical Evaluation Board (PEB).  The applicant agreed
with the MEB's finding and recommendation.

5.  On 10 March 1992, an informal PEB found the applicant unfit for duty
for major depression, single episode.  The PEB recommended the applicant be
placed on the TDRL with a combined disability rating of 30 percent and be
reexamined during 8 February 1993.  The applicant concurred with the
findings and waived a formal hearing of his case.

6.  On 1 May 1992, the applicant was released from active duty due to
disability, temporary and placed on the TDRL with a disability rating of 30
percent on
2 May 1992.  The applicant had served 2 years, 7 months and 14 days of
active service that was characterized as honorable.

7.  On 29 August 1992, the DVA assigned the applicant a 50 percent rating
for depression.

8.  On 22 April 1993, a periodic TDRL informal PEB found the applicant
unfit for duty for major depression, recurrent without psychotic features.
The PEB recommended the applicant be permanently retired with a combined
disability rating of 30 percent.  According to the Narrative Summary
(NARSUM) the applicant had one follow-up appointment with the DVA and had
discontinued his antidepressant medication about 3 months prior to the
examination.  The NARSUM further stated that since stopping his medication
the applicant had noted a return of his depressive symptoms.

9.  On 23 April 1993, the president of the PEB, under the provisions of
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or
Separation), directed that the applicant appear before a formal PEB
hearing.

10.  On 25 May 1993, a formal PEB found the applicant unfit for duty for
major depression, recurrent without psychotic features.  The PEB
recommended that the applicant be retained on the TDRL with a reexamination
during 1 June 1994. In a memorandum for the record, the president of the
PEB stated that the applicant was retained on the TDRL based on his
testimony that he was going to return to active treatment.  The president
further stated that when the applicant was reevaluated, consideration of
the applicant's failure to follow medical treatment should be given.

11.  On 29 December 1994, an informal PEB found the applicant unfit for
duty for major depression, recurrent, mild without psychotic features.  The
PEB recommended that the applicant be retained on the TDRL with a
reexamination during 1 July 1996.

12.  The records show that the applicant missed TDRL medical reevaluation
appointments in July, August, and October of 1996.

13.  On 1 May 1997, the applicant was administratively removed from the
TDRL without entitlement to severance pay due to his failure to complete a
scheduled physical reexamination required by law.

14.  The records contain two letters, dated 8 August 2003, from the
applicant's physician and nurse practitioner, that stated the applicant was
unable to appear for his final TDRL examination due to severe symptoms of
depression, panic attacks, and phobic avoidance behavior that was
preventing him from being able to leave his home most of the time.

15.  During the processing of this case the applicant was notified on 10
June 2004 by the staff of the ABCMR that he must submit copies of all DVA
medical records and civilian medical records that relate to his depression
from 1996 until the present.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) states, in pertinent part, that a Soldier placed on the TDRL
must undergo a periodic 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.

17.  Army Regulation 635-40 further states, in pertinent part, that
Soldiers on the TDRL shall not be entitled to permanent retirement or
separation with severance pay without a current acceptable medical
examination, unless just cause is shown for failure to complete the
examination.  Upon failure to undergo a physical examination, the Soldier
will be administratively removed from the TDRL on the fifth anniversary of
placement on the list without entitlement to any benefits.

18.  Title 38, United States Code, permits the DVA to award compensation
for disabilities which were incurred in or aggravated by active military
service.  However, an award of a DVA rating does not establish error or
injustice in the Army not separating the individual for physical unfitness.
 An Army disability rating is intended to compensate an individual for
interruption of a military career after it has been determined that the
individual suffers from an impairment that disqualifies him or her from
further military service.  
 
19.  The DVA, which has neither the authority nor the responsibility for
determining physical fitness for military service, awards disability
ratings to veterans for conditions that it determines were incurred during
military service and subsequently affect the individual’s employability.
Accordingly, it is not unusual for the two agencies of the Government,
operating under different policies, to arrive at a different disability
rating based on the same impairment.  Furthermore, unlike the Army, the DVA
can evaluate a veteran throughout his or her lifetime, adjusting the
percentage of disability based upon that agency’s examinations and
findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that upon removal from the TDRL he should have
been permanently retired for disability with a 30 percent disability
rating.

2.  The applicant had been on the TDRL since 1992.  The applicant had
complied with scheduled TDRL follow-up examinations on two previous reviews
by the PEB.  Therefore, it is reasonable to presume that he was aware of
his responsibility to undergo a follow-up examination.
3.  The applicant's removal from the TDRL on the fifth anniversary of
placement on the list without entitlement to any benefits was
administratively correct and in conformance with applicable regulations.

4.  The applicant failed to provide DVA medical records and civilian
medical records that relate to his depression from 1996 until the present.
Therefore, these records were not available for the Board to review.

5.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 May 1997, the date he was removed
from the TDRL; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 30 April 2000.  The
applicant did not file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___le____  ___lgh__  ____pms_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations
prescribed by law.  Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.




                                  ___________Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010618                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050929                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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