RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
		 

	BOARD DATE:	  21 August 2007
	DOCKET NUMBER:  AR20060017106 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine I. Fields

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 her medical retirement be reinstated and that she be compensated retroactively for all the years she was removed from the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, that her TDRL Physical Evaluation Board (PEB) decision in October 1998 was based on inaccurate and falsified information and she was deprived of the opportunity to appeal the decision as was her right.  She claims that she has proof that the process was not correct.  Her TDRL evaluation states that a physical examination was performed on her person during this review, which is a complete fallacy.  Prior to her examination her vital signs were taken by the nursing staff and afterwards the physician sat behind his desk through the entire time and never physically examined her.  

3.  The physician who examined her during the TDRL PEB proceedings did not show interest in her well being.  She was shocked to learn that old blood test results had been forwarded to the PEB along with the physician's false report and were used in place of new ones that should have been gathered at the examination to show whether her condition had gotten worse.  

4.  The applicant further states that a certified copy of the PEB decision and attached receipts show it was properly delivered to her address.  To this day she does not have a clue who signed for this certified mail.  She feels that she was stripped of her right to disagree/agree with the findings, to send in a rebuttal, or even request a formal hearing with legal counsel.

5.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 4 October 1997; numerous letters to and from Congressional Representatives; a DA Form 638 (Recommendation for Award), dated 12 August 1996; a United States Army Medical Specialist Course diploma; a United States Army Medical Department certificate; two Certificates of Promotion; three Department of Veterans Affairs (DVA) Ratings Decisions; a DA Form 3947 (Medical Evaluation Board Proceedings), dated 7 July 1997; a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 31 July 1997; three memoranda from the United States Total Army Personnel Command; two memoranda from the Medical Department Activities, Fort Leonard Wood, Missouri, dated 11 February 1999; two memoranda from the United States Army Physical Evaluation Board, Tacoma, Washington; a letter from the Defense Finance and Accounting Service (DFAS), dated 19 February 1999; five Invoices from Fort Leonard Wood Army Community Hospital; a Disability Rights Advocates letter, dated 14 July 2006; and an undated letter, Subject: Loss of Medical Disability Retirement.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 17 March 1999.  The application submitted in this case is dated 1 December 2006.

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 enlisted in the Regular Army on 1 September 1993 and successfully completed basic training and advanced individual training.  She was awarded military occupational specialty 91B (Medical Specialist).  

4.  On 7 July 1997, a Medical Evaluation Board (MEB) referred the applicant to a PEB for unstable Crohn's disease involving both large and small bowel, Crohn's disease involving the parianal region, and anemia secondary to Crohn's disease. The results of the narrative summary (NARSUM) prepared by the MEB is not available.

5.  On 31 July 1997, a PEB found the applicant to be unfit due to Crohn's disease involving both large and small bowel and the perianal region with secondary anemia with a 30 percent disability rating and recommended the applicant be placed on the TDRL.

6.  On 4 October 1997, the applicant was retired from active duty after completing 4 years, 1 month, and 4 days of creditable active service and was placed on the TDRL on 5 October 1997 with a 30 percent disability rating.

7.  The applicant’s DD Form 214 with the period ending 4 October 1997 shows in item 28 (Narrative Reason for Separation) the entry “DISABILITY, TEMPORARY.”

8.  United States Army Personnel Command Letter Orders D08-050, dated 
29 May 1998, show that the applicant was to report to Fort Leonard Wood, Missouri for a periodic TDRL PEB physical examination in October 1998.  The result of the TDRL PEB physical examination is not available.

9.  On 19 February 1999, a TDRL PEB found the applicant to be unfit due to Crohn's disease with a 10 percent disability rating and recommended the applicant be separated with severance pay.  Only the front page of the applicant's TDRL DA Form 199 is available. 

10.  A memorandum, dated 19 February 1999, Subject: Recorder, Physical Evaluation Board – Fort Lewis, Washington, from the Board Recorder addressed to the applicant, shows that an informal PEB reviewed the applicant's recent TDRL PEB physical examination and recommended that her name be removed from the TDRL.  She was informed that she was required to show whether she agreed or disagreed with the finding.

11.  The memorandum further stated "If you submit a rebuttal and waive a formal hearing, the rebuttal must be based on specific issues and fully justified.  Your rebuttal will be considered by the Board and you will be notified in writing of the PEB's decision."

12.  A memorandum, dated 15 March 1999, Subject: Waiver of Right to Election, from the United States Army PEB, Tacoma, Washington to the Commander, United States Total Army Personnel Command, ATTN: TAPD-PEB, shows that a copy of the informal PEB proceedings was forwarded to the applicant by certified mail and that the PEB Liaison Officer (PEBLO) attempted to contact the applicant to advise her of her election rights, but her phone had been disconnected and that the applicant had made no attempt to contact her PEBLO.  The memorandum further stated, "In accordance with AR 635-40, para 4-20e, the Soldier is considered to have waived his/her right to election."

13.  On 17 March 1999, the applicant was removed from the TDRL with a disability rating of 10 percent and discharged with severance pay.

14.  The applicant submitted a Veterans Affairs (VA) Disability Rating memorandum, dated 22 March 2004, that shows that her Crohn's disease was increased from 30 percent disabling to 60 percent disabling.

15.  On 21 June 2007, the ABCMR requested that the applicant provide her entire MEB/PEB packet, to include the NARSUM and her entire TDRL re-evaluation MEB/PEB packet, to include the NARSUM.  The NARSUM was not included in the additional documentation provided for this case.

16.  Army Regulation 635-40 (Physical Evaluation), 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.

17.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

18.  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.  Although the applicant contends that her medical retirement should be reinstated and that she be compensated, there is no evidence and the applicant has not provided evidence to this Board that shows her TDRL PEB decision was based on inaccurate and falsified information or that she was deprived of the opportunity to appeal the PEB decision.  Evidence of record shows that after her TDRL PEB physical examination a copy of the proceedings was mailed to her address by certified mail which was received by someone.  Attempts were made by phone to contact the applicant but the phone had been disconnected.  There is no evidence that shows the applicant attempted to contact her PEBLO to inquire on her status.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize her rights.  Therefore, it is concluded that the applicant’s discharge was proper and equitable.

3.  Regrettably, in view of the foregoing, there is no basis for granting the applicant's request.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 March 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
16 March 2002.  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

___CVM _  __DED__  __EIF___  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.




____Conrad V. Meyer____
          CHAIRPERSON




INDEX

CASE ID
AR200600017106
SUFFIX

RECON

DATE BOARDED
21 SEPTEMBER 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
145.0000.0000
2.

3.

4.

5.

6.