RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 January 2005
      DOCKET NUMBER:  AR2004106310


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 his records be corrected to
show he was permanently retired for disability.

2.  The applicant states that when he was discharged (i.e., placed on the
Temporary Disability Retired List (TDRL)) he was told he needed to keep the
Department of Veterans Affairs (VA) informed of his whereabouts, which he
did.  He was not informed to do the same with the Army.

3.  The applicant provides his service and VA medical records; portions of
his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB)
packets; and a VA Rating Decision dated 25 January 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors or an
injustice which occurred around May 1998.  The application submitted in
this case is dated       17 March 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 limitation 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 enlisted in the Regular Army on 30 November 1988.  He
served in Southwest Asia from 26 December 1990 to on or about 18 May 1991.

4.  An MEB Narrative Summary dictated 15 September 1992 shows the applicant
had a seizure in May 1991, on the plane back from Saudi Arabia.  He had
been evaluated in September 1991 for low back pain and diagnosed as having
T5 and T6 fractures, which Orthopedics assessed as well-healed.  He had a
normal neurological examination as well as a normal CT (computed
tomography) scan and MRI (magnetic resonance imaging) of the brain.
Because of the description of the seizure events and the presence of
vertebral fractures, he was diagnosed as having generalized epilepsy.  He
was referred to a PEB for (diagnosis 1) generalized epilepsy and (diagnosis
2) fractured T5 and T6, well-healed.

5.  On 2 February 1993, an informal PEB found the applicant to be
physically unfit due to generalized epilepsy.  Diagnosis 2 was found to be
not unfitting and not rated.  The informal PEB recommended he be separated
with severance pay with a 10 percent disability rating.

6.  The applicant apparently nonconcurred with the findings of the informal
PEB and demanded a formal hearing.  On 12 March 1993, a formal PEB found
him to be physically unfit due to generalized epilepsy.  Diagnosis 2 was
found to be not unfitting and not rated.  The formal PEB recommended he be
placed on the TDRL with a 40 percent disability rating with reexamination
during April 1994.

7.  The applicant apparently never received notification to take a TDRL
reexamination.  On 7 July 1999, the U. S. Army Enlisted Records and
Evaluation Center recorded a conversation with the Physical Disability
Branch, U. S. Army Personnel Command that it was determined he was no
longer on the TDRL and should be administratively removed.  Records at the
U. S. Army Physical Disability Agency contain a reference that he was
removed from the TDRL 6 July 2000 but have no record of re-evaluation
orders or a folder on him.

8.  The VA Rating Decision provided by the applicant shows that he filed a
claim for increased evaluation on 19 March 1998.  The VA continued their
evaluation of residuals of his compression fracture T5 and T6 with low back
pain at 40 percent and their evaluation of his grand mal
seizures/depressive mood at 40 percent.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purpose of his employment on active duty.
It states that there is no legal requirement in arriving at the rated
degree of incapacity to rate a physical condition which is not in itself
considered disqualifying for military service when a Soldier is found unfit
because of another condition that is disqualifying.  Only the unfitting
conditions or defects and those which contribute to unfitness will be
considered in arriving at the rated degree of incapacity warranting
retirement or separation for disability.

10.  Army Regulation 635-40 also prescribes the function of the TDRL.  The
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.

11.  Army Regulation 635-40 states that a Soldier's name may be placed on
the TDRL when it is determined that the Soldier is qualified for disability
retirement but for the fact that his or her disability is determined not to
be of a permanent nature and stable.  Current address and phone number will
be reflected on the TDRL.  A Soldier 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.  Soldiers who fail to complete a physical
examination when ordered will have their disability retired pay suspended.
All involved agencies and personnel will ensure that cases of Soldiers
nearing expiration of 5-year TDRL tenure are identified and given priority
processing.

12.  Title 10, U. S. Code, section 1210a states that a physical examination
shall be given at least once every 18 months to each member whose name is
on the TDRL 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, after receipt of proper notification,
his disability retired pay may be terminated.

13.  Title 10, U. S. Code, section 1210b provides that the Secretary
concerned shall make a final determination of the case of each member whose
name is on the TDRL upon the expiration of five years after the date when
the member's name was placed on that list.  If, at the time of that
determination, the physical disability for which the member's name was
carried on the TDRL still exists, it shall be considered to be of a
permanent nature and stable.  A decision as to the percentage of disability
is made at that time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on the TDRL on 28 May 1993 for his diagnosis
of generalized epilepsy with a 40 percent disability rating.  He should
have known to keep the Army informed of his whereabouts so they could
contact him when the time came for his periodic reexaminations.  It appears
he did not do so, however, and he was finally administratively removed from
the TDRL in 1999 or 2000, as required by law.  The latest he should have
been allowed to remain on the TDRL would have been 27 May 1998.

2.  Nevertheless, the Army would have had the applicant's current address
and phone number at least as of the date he was placed on the TDRL.
However, information received from the U. S. Army Physical Disability
Agency revealed a reference that he was removed from the TDRL on 6 July
2000 but that agency had no record of TDRL re-evaluation orders or a folder
on him.

3.  At least as of 19 March 1998 the VA had rated the applicant's epileptic
condition as 40 percent disabling.  That was the same rating the Army had
awarded him.  In the absence of evidence substantiating that the Army had
tried to contact him so he could take a TDRL re-evaluation but could not do
so due to the applicant's fault, any doubt should be resolved in his favor.
 Therefore, it would be equitable to correct his records to show he was
removed from the TDRL and permanently retired by reason of physical
disability effective 28 May 1998 with a 40 percent disability rating.

4.  Although the VA awarded him a 40 percent disability rating for his back
condition, the Army determined his back condition did not render him unfit.
 Only the unfitting condition is considered in arriving at the rated degree
of incapacity warranting retirement for disability.

BOARD VOTE:

__wtm___  __ecp___  __jrm___  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing that he was removed from the
TDRL and permanently retired by reason of physical disability effective 28
May 1998 with a 40 percent disability rating.




            __Walter T. Morrison__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106310                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050113                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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