RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20070001168 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. LaVerne Douglas

Chairperson

Mr. Edward Montgomery

Member

Ms. Rea Nuppenau

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 military records be corrected to show he was permanently retired. 

2.  The applicant states, in effect, that due to an error stating that he was on the Temporary Disability Retired List (TDRL) instead of the medical retired list, he cannot get medical coverage for his children through the Department of Veterans Affairs.    

3.  The applicant’s application indicates that he provided a “VA” [Veterans Affairs) Award letter; however, this letter is not available.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 12 November 1996.  The application submitted in this case is dated 11 January 2007.

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 on 24 January 1989 for a period of 4 years.  He trained as a cannon crewmember.

4.  On 31 May 1991, a Medical Evaluation Board (MEB) diagnosed the applicant with seronegative spondyloarthropathy felt to be ankylosing spondylitis versus juvenile rheumatoid arthritis; bilateral pan uveitis; right knee inflammation; pseudoaphakia; and cystoid macular edema.  The MEB recommended referral to a Physical Evaluation Board (PEB) .  On 12 June 1991, the applicant agreed with the findings and recommendations.  

5.  On 31 July 1991, an informal PEB found the applicant physically unfit due to seronegative spondyloarthropathy due to either ankylosing spondylitis or juvenile rheumatoid arthritis associated with right knee inflammation, bilateral pan uveitis, pseudoaphakia and cystoid macular edema.  The PEB recommended a combined rating of 40 percent and that the applicant be placed on the TDRL with reexamination during September 1992.  On 8 August 1991, the applicant concurred with the findings and recommendations and waived a formal hearing.  

6.  A DA Form 5893-R (PEBLO [Physical Evaluation Board Liaison Officer] Counseling Checklist/Statement), dated 8 August 1991, shows the applicant was counseled and informed of the requirement for periodic medical examinations and PEB evaluation.  He acknowledged that he was counseled on this requirement.

7.  On 12 September 1991, the PEB findings and recommendations were revised by the U.S. Army Physical Disability Agency (item 10a on the DA Form 1999 (PEB Proceedings) was changed to show “the Soldier’s retirement is not based on disability….” and item 10c was changed to show “The disability did not result from a combat related injury...”).  On 23 September 1991, the applicant received notification as to the revised findings and recommendations and failed to make an election or submit any statement.  Therefore, it was determined that he waived his right to file a rebuttal to the revised findings. 
  
8.  On 12 November 1991, the applicant was released from active duty in the rank of private first class and placed on the TDRL the following day with a disability rating of 40 percent.  

9.  On 18 June 1992, the applicant was notified by mail that his medical periodic examination was being arranged during or before September 1992.  Letter Orders, dated 18 June 1992, for a TDRL physical examination at Fort Sill, Oklahoma during September 1992 were published.  Records show the applicant did not report for this examination.   

10.  On 26 August 1993, a memorandum was sent to the applicant by certified mail instructing him to report to Fort Sill, Oklahoma for a TDRL physical examination on 8 September 1993.  He signed for this certified mail.  
Records show that the applicant called the hospital at 0900 hours on 
8 September 1993 and cancelled his appointment without giving a reason.     

11.  On 17 February 1994, the applicant was notified by mail that records show he failed to report for his periodic physical examination during September 1992.  He was instructed that if he did not provide an explanation for his failure to report for the examination that no further effort would be made to schedule him for future examinations, that his eligibility to receive Army retired pay would be terminated, and that his military identification card would be cancelled.

12.  On 15 July 1994, the applicant was notified by mail that his eligibility to receive disability retirement pay was terminated effective 29 July 1994 because of his failure to report for his periodic medical examination.  He was informed that entitlement to his identification and privilege card was also terminated.  He was also instructed that his eligibility to receive retired pay could be reinstated if he requested another appointment for an examination and provided a written explanation of the reason for his failure to report for the previous examination.

13.  On 2 January 1996, the applicant was notified by mail that his medical periodic examination was being arranged during or before January 1996.  Letter Orders, dated 2 January 1996, for a TDRL physical examination at Fort Sill, Oklahoma during January 1996 were published.   
 
14.  On 23 May 1996, the applicant was notified by mail that his medical periodic examination was being arranged during or before July 1996.  Letter Orders, dated 23 May 1996, for a TDRL physical examination at Fort Sill, Oklahoma during July 1996 were published.   

15.  Records show that all correspondence to the applicant was returned by the U.S. Postal Service unclaimed.

16.  On 12 November 1996, the applicant was removed from the TDRL without entitlement to severance pay because he failed to complete a scheduled physical reexamination as required by law.

17.  Army Regulation 635-40 provides, in pertinent part, 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, U.S. 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.  (Individuals in TDRL status are entitled to one half of their basic pay regardless of the disability rating). 

18.  Title 10, U.S. Code, section 1210(h) provides that the disability pay of a member whose name is on the TDRL terminates upon the expiration of 5 years after the date when his or her name was placed on that list.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was counseled on 8 August 1991 and informed of the requirement for periodic medical examinations while on the TDRL.  Evidence of record also shows he was removed from the TDRL without entitlement to severance pay because he failed to report for his required periodic medical examinations.  Therefore, there is no basis for granting the applicant’s request.  

2.  Records show the applicant should have discovered the alleged error now under consideration on 12 November 1996; therefore, the time for the applicant to file a request for correction of any error expired on 11 November 1999.  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

LD_____  __EM___  _RN_____  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.



___LaVerne Douglas____
          CHAIRPERSON




INDEX

CASE ID
AR20070001168
SUFFIX

RECON

DATE BOARDED
200706012
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0400
2.

3.

4.

5.

6.