RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060001427


      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. W. W. Osborn. Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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 that his 14 January 2003 removal from the TDRL
(Temporary Disability Retired List) and discharge without benefits be
changed to physical disability retirement.

2.  The applicant states, in effect, that he could not attend the scheduled
medical TDRL examinations because of other scheduled medical appointments
and because his wife would have lost her job if she had taken more time off
work.  She had arranged with the disability evaluation people at Fort
Bragg, North Carolina (NC) to accept the range of motion evaluations on his
knee from his VA (Department of Veteran Affairs) doctors.

3.  The applicant provides copies of his 2 December 1997 Certificate of
Release or Discharge from Active Duty (DD Form 214); a portion of his
medical evaluation board (MEB) narrative summary; an incomplete copy of his
physical evaluation board (PEB); a 10 February 1999 letter from the VA
outpatient clinic at Winston-Salem, NC; a 24 January 2002 progress note
from the Charlotte Mental Health Center; a 6 April 1998  memorandum from
the VA; and statements from his wife, dated 26 March 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career Regular Army noncommissioned officer, was a
staff sergeant with approximately 15 years service when he suffered a
medical accident following knee surgery.

2.  According to the MEB narrative report breathing assistance was
prematurely removed while he was still under the effect of anesthesia,
gagged, suffered a prolonged period when his brain received insufficient
oxygen (anoxia), and he developed aspiration pneumonia.

3.  The 3 July 1997 MEB at Fort Stewart, Georgia found he did not meet
retention standards and referred his case to a PEB with a diagnosis of
chronic right knee pain, short term and long term memory loss, cognitive
deficits secondary to the anoxic episode, and personality change with
depressive features secondary to his medical conditions.

4.  The 5 August 1997 PEB found him physically unfit to perform his duties
and recommended that his cognitive disorder be rated at 30 percent
disabling and that his knee pain be rated at 10 percent.  The PEB also
concluded that his condition was not sufficiently stable for final
evaluation.
5.  On 2 December 1997, the applicant was separated from active duty with
an honorable characterization of service and transferred to the TDRL as a
staff sergeant.

6.  Army Physical Disability Agency (USAPDA) Orders D9-20, dated 14 January
2003, noted that the applicant had failed to complete a scheduled physical
re-examination.  Because of this and the fact that he had been on the TDRL
for the allowable 5 years, he was administratively removed from the TDRL
effective that date.

7.  The applicant’s service and VA medical records, as well as MEB/PEB
documents and TDRL evaluations, were not available for Board review.

8.  The documentation provided with the application contains the following
information:

      a.  The 6 April 1998 memorandum from the VA to Fidelity Mortgage
Corporation which states that the applicant is permanently disabled;

      b.  The 10 February 1999 letter from the VA outpatient clinic at
Winston-Salem, NC to the effect that the VA would pay for locally provided
(Charlotte, NC) physical therapy;

      c.  The 24 January 2002 progress mental health progress note
indicates that the applicant’s wife “requests a psychiatric update to be
presented to Fort Bragg yearly review of PT’s condition/progress.”  The
physician observed that his condition remained unchanged he was severely
impaired and the prognosis for any improvement was guarded at best.  He
suffers from depressive episodes, isolates and refuses to go out with his
family.  His rage episodes were controlled by medication and he did not
present a management problem, yet he required constant supervision and
assistance.  The doctor considered him totally and permanently disabled.
She also noted that his liver enzymes were elevated and that reducing the
Tegretol (an anticonvulsant and analgesic) prescription might need to be
considered.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) paragraph 7-11b (Periodic examination not performed) states,
“The USA HRC will take the actions described below when a periodic
examination cannot be carried out.  Subparagraph (4) (Removal on fifth
anniversary) 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.  Six months before the fifth anniversary of placement on the
TDRL, USA HRC will make a final attempt to contact the Soldier ((1) and (2)
above) or proper civil authorities ((3) above) and arrange a final
examination.  If this fails and the Soldier does not undergo a physical
examination, USA HRC will administratively remove him or her from the TDRL
on the fifth anniversary of placement on the list without entitlement to
any of the benefits provided by 10 USC 61.”

10.  Department of Defense Instruction 1332.38,  paragraph
E3.P6.2.3.applies to persons on the TDRL who do not complete requested re-
examinations.  It states, “his or her disability retired pay may be
terminated.  If the member later reports for the physical examination,
retired pay will be resumed retroactively, to the date the examination was
actually performed.  If the Service member subsequently shows just cause
for his or her failure to report, disability retired pay may be paid
retroactively for a period not to exceed one year prior to the actual
performance of the physical examination.  If the member does not undergo a
periodic physical examination after disability retired pay has been
terminated, he or she will be administratively removed from the TDRL on the
fifth anniversary of placement on the list and separated without
entitlement to any of the benefits under reference Chapter 61 of 10 USC.”

11.   During the processing of this case an advisory opinion was obtained
from the USAPDA.  The deputy commander noted, in effect, that the applicant
had repeatedly failed to keep appointments for TDRL re-evaluation including
a rescheduled one from June 2001 for which the USAPDA could find no
response from the pertinent military treatment facility.  The first TDRL re-
evaluation was finally accomplished after some delay, in April 1999.  (It
is assumed he was continued on the TDRL since a second re-evaluation was
scheduled.)  He observed that the applicant’s spouse even admitted missing
the appointments by claiming that she did not have time to take him to
those evaluations and his treatment appointments as well.  The USAPDA noted
that an individual cannot be on the TDRL more than five years and
recommended that his military record not be changed.

12.  The advisory opinion was provided to the applicant for rebuttal or
comment.  His spouse replied that she took full responsibility for missing
the appointments, but she could risk losing her job by keeping that
appointment.  She related that February 1999 reevaluation was not missed,
it had been rescheduled.  The applicant had developed heart problems which
led to more medical appointments and further postponements of the TDRL
reevaluations.  The June 2001 reevaluation was rescheduled for December
2001, but then she had to take him to Durham for orthopedic appointments.
She had asked the TDRL if they could consider the VA reports and they
agreed.  In January 2002, the VA doctors put together a report of
everything except for the flexibility measurements on his knee.  They sent
those reports to Fort Bragg.  She maintained that she had been told at the
second evaluation that it would be the final one.  She also contended, in
effect, that it was unfair to report that she claimed to simply not have
the
time, when in fact, keeping those appointments would have cost her job.
She enclosed with her rebuttal the following documents that had not been
previously submitted:

      a.  an electrocardiogram, dated 22 January 1999, from the VA Medical
Center, Salisbury, NC;

      b.  a 22 January 1999 consultation sheet indicating that the
applicant was seen for chest pains and was to be scheduled for follow-up
within 4 weeks; and

      c.  a March 2003 appeal from the applicant’s spouse to the Chief,
Operations Division, USAPDA in which she pointed out that he was mentally
incompetent and could not drive or make decisions.  She pointed out that
she was the only one in the family who could either drive or work and that
travel to Fort Bragg for a TDRL evaluation was a hardship on the family and
might cost her job.  She also noted that his present disability was due far
more to the medical accident associated with his knee surgery than the
range of motion studies on his knee that seemed to be holding up
finalization of his case.  She also pointed out that, except for that
medical accident, he would have retired due to length of service on 14 July
2002.

13.  Title 38, U. S. Code, section 5304 states that, except to the extent
that retirement pay is waived under other provisions of law, not more than
one award of pension, compensation, regular, or reserve retirement pay
shall be made concurrently to any person based on such person’s own
service.

14.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a VA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a VA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the VA pension
and military retirement.  The new law does not apply to disability retirees
with less than 20 years of service.




DISCUSSION AND CONCLUSIONS:

1.  The applicant was physically and mentally disabled when he was released
from active duty.  He was placed on the TDRL so that his condition could be
fairly evaluated.  He was continued on the TDRL after his first re-
evaluation (April 1999).  It can, therefore, be assumed that the PEB
determined his medical condition was still not sufficiently stable for
final disability rating purposes.

2.  The applicant is medically disadvantaged as a result of surgery
performed in a military medical facility.  Having to be at a specified time
and place proved to be difficult for him and his family.  The challenges
that apparently faced his spouse as noted in her letters are understood.

3.  The applicant’s spouse contends that VA doctors provided medical
updates to Fort Bragg medical officials for a second TDRL evaluation.  His
spouse indicated the TDRL Branch (unknown whether this is Fort Bragg or
USAPDA) acknowledged receipt of the medical reports; but, additional
measurements of the applicant’s knee were required.  The follow-up knee
evaluation apparently was not completed and a completed TDRL evaluation was
not submitted for PEB adjudication.

4.  Based upon the incomplete TDRL evaluation and the expiration of five
years on the TDRL, the applicant was removed from the TDRL as noted by the
USAPDA advisory opinion.  This action was administratively correct; but,
the final outcome was unjust.

5.  In the absence of the applicant’s MEB/PEB proceedings and TDRL
evaluations, there is insufficient evidence upon which to base a more up-to-
date disability rating.  However, continued requests to reassess the
applicant’s condition serves more to further overburden his spouse rather
than to serve justice.  Furthermore, the VA rating system is structured to
provide for reoccurring assessments of disabled veterans.  Additionally, as
previously noted, the medical progress note of 24 January 2002, indicated
the applicant’s condition had remained unchanged.

6.  In the interest of justice and compassion, the applicant’s removal from
the TDRL should be voided and he should be placed on the retired list due
to physical disability, effective 14 January 2003.  In the absence of
evidence to the contrary, the disability ratings will remain as adjudicated
by the 5 August 1997 PEB.

7.  The applicant’s disability rating is being based upon his condition as
it was at the time he was placed on the TDRL.  It is recognized that his
condition may have worsened in the time he was on the TDRL.  However, it is
believed he will not be disadvantaged by this action.  Presumably, he will
waive his military retired pay in favor of receiving VA disability
compensation as more favorable to him.  As he did not have 20 years of
service at the time he was placed on the TDRL, he would not be eligible for
concurrent receipt of military retired pay and VA disability compensation.

BOARD VOTE:

__LDS __  __PHM__  __DWS__  GRANT FULL 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.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.   voiding the 14 January 2003 administrative removal from the
TDRL;

      b.  transferring him to the retired list due to disability incurred
in the line of duty effective 14 January 2003; and

      c.  rating his disability at 30 percent for cognitive disorder with
personality changes and 10 percent for right knee pain.





                                  _      Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001427                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . . . .                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |145.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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