RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070010798 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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 correction of his records to show he is entitled to retired pay, a retired military Identification Card (ID), and medical benefits under the Department of Defense TRICARE health care program.

2.  The applicant states that he was retired from the Army on 5 July 1976 because of injuries sustained in a jeep/bus crash while serving in Korea.  He was retired with a disability rating of 60 percent, but he has never received any money from the Army.  He concludes that neither the Defense Finance and Accounting Service (DFAS) nor the Army Separations Claims Branch have any record of his retirement. 

3.  The applicant provided a copy of his DD Form 214 (Report of Separation from Active Duty), dated 5 July 1976, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army (RA) on 24 May 1971 for a period of 3 years.  However, after completing only 4 months and 22 days of creditable military service, he was separated in accordance with paragraph5-32b(1) of Army Regulation 635-200 (Personnel Separations) and transferred to the U.S. Army Reserve Control Group.  His records further show that he was ordered to active duty on 3 March 1975 and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 12 September 1975, while stationed in Korea, the applicant was involved in an auto accident when the jeep he was driving was struck by a local bus.  He was taken to the 121st Evacuation Hospital where X-Rays revealed that he 

suffered bilateral closed fractured femurs and bilateral patellar fractures.  He remained at that hospital for treatment until 19 September 1975.  He was then medically evacuated to Wright Patterson Air Force Base, Ohio, on 21 September 1975 where he underwent several operative procedures due to his extensive femur fractures.  After surgery, rehabilitation, and convalescent leave, the applicant was transferred to Fort Know, Kentucky for evaluation of medical fitness.

4.  On 6 April 1976, a Medical Evaluation Board (MEB) convened at the U.S. Army Hospital, Fort Knox, Kentucky, and determined that the applicant was medically unfit for duty due to bilateral closed femur fractures, bilateral patellar fractures, spondylolysis bilaterally in vertebrae L-5 and S-1, and traumatic arthritis.  The MEB recommended the applicant be referred to a PEB.  The MEB also noted the applicant did not desire to remain on active duty.

5.  On 20 May 1976, an informal PEB convened at Fort Gordon, Georgia, and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to bilateral fracture of the femur; residuals of arthritis; and limitation of motion rated as malunion with marked knee disability.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5255.  The PEB recommended a combined disability rating of 60 percent and that the member be placed on the Temporary Disability Retired List (TDRL) with reexamination during November 1977.  The applicant concurred and waived a formal hearing of his case.

6.  The applicant was separated from active duty and issued a DD Form 214 showing that he was honorably retired on 5 July 1976 under the provisions of Army Regulation 635-40.  His narrative reason for separation is shown as "Physical Disability-Temporary."  He completed 1 year 8 months, and 25 days of creditable active service.

7.  On 1 June 1978, the applicant was informed by memorandum that he was scheduled for a periodic medical examination during November 1977.

8.  On 1 August 1977, U.S. Army Military Personnel Center, Alexandria, Virginia, published Letter Orders Number 11-150 authorizing the applicant travel from his home of record to the U.S. Army Hospital, Fort Knox, Kentucky, to undergo his periodic physical evaluation.

9.  On 6 March 1978, a PEB informally reviewed the applicant's report of his recent periodic medical examination and other records.  The PEB hearing 

determined that the applicant's physical condition had improved dramatically and the applicant was found physically fit.  The PEB recommended the applicant's name be removed from the TDRL.  The applicant did not concur and demanded a formal hearing without a personal appearance, but with a regularly appointed counsel to represent him.  He provided a handwritten rebuttal statement that he was confused over two letters he received, one declaring him fit and the other declaring him unfit.

10.  On 7 April 1978, Letter Orders Number 11-150 were amended to allow the applicant to appear before a formal PEB, at Fort Gordon, Georgia, on 25 April 1978.  

11.  On 25 April 1978, based on a review of the medical evidence of record, the applicant's testimony, and comments by his counsel, the PEB reaffirmed its previous findings of fit for duty.  The applicant again nonconcurred and rebutted.

12.  On 17 May 1978, the PEB considered the applicant's rebuttal; to the findings of the formal board and adhered to its findings of 25 April 1978.

13.  On 31 May 1978, the U.S. Army Military Personnel Center, Alexandria, Virginia, informed the applicant by memorandum that he was removed from the TDRL and that prior to the effective date of the removal, he would be afforded the opportunity to reenlist.  Orders Number D106-9 removing the applicant from the TDRL effective 30 June 1978 were published on the same day.

14.  On 13 June 1978, the applicant signed an election statement relative to reenlistment stating that he declined to reenlist in the RA within 90 days following his removal from the TDRL. 

15.  Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.


16.  VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, rank, and grade.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

17  AR 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214 that is prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  Paragraph 2-1(b)3 provides that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

18.  Department of Defense Directive (DoDD) 1332.18, Part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact that the member’s disability is not determined to be of a permanent nature and stable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to full retirement benefits after removal from the TDRL.

2.  Evidence of record shows that the applicant was involved in an auto accident. He was placed on the TDRL so that his condition could be monitored and fairly evaluated.  He underwent a periodic physical evaluation, appeared before a formal PEB, was found fit, and was given the opportunity to reenlist and remain in the Army.  However, the applicant elected not to reenlist and was discharged by Orders Number D106-9.  

3.  At the time of his release from active duty on 5 July 1976, the applicant was in fact “retired,” albeit temporarily.  He was subsequently removed from the TDRL on 30 June 1978 based on a re-evaluation of his medical condition which found him fit for duty. This did not change the basis or reason for his 5 July 1976 release from active duty.  There was no additional active service and, as such, no basis to issue another DD Form 214, nor amend his original separation document.  The DD Form 214 reflects the date he was temporarily retired from 

active duty when his name was placed on the TDRL while orders issued on 31 May 1978 removed his name from the TDRL and effectively terminated his status with the Army.  

4.  Soldiers who qualify for permanent disability retirement (rated at 30% or higher or with 20 or more years of active duty or 7200 points of combined service) are placed on the TDRL if the PEB determines that their condition is not stable for rating purposes.  This happens if, in the opinion of the PEB, the Soldier’s condition can be expected to improve or worsen during the TDRL period.  While on the TDRL, the disability rating doesn’t change, regardless of any change in condition of the Soldier.  Placement on the TDRL protects both the Soldier and the Army.  Soldiers placed on the TDRL will receive a minimum of 50% of basic pay and also receive all other retirement benefits (ID cards, TRICARE eligibility, etc.) while on the TDRL.  Soldiers on the TDRL will receive a medical re-evaluation at least once every 18 months while on the TDRL, and this re-evaluation will be forwarded to a PEB for a new disability determination.  As a result of the new PEB finding, the Soldier may be found fit and may be given the opportunity to return to military service if desired (as was the case in the applicant's situation), separated with severance pay (if the rating is decreased under 30%), permanently retired, or retained on the TDRL and re-evaluated again within 18 months.  Placement on the TDRL cannot be longer than five years.  At the end of those five years, Soldiers must be removed and given a final rating.

5.  In view of the foregoing, there is no error or injustice in the applicant's records in this case and the applicant is not entitled to a relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lcb___  __ded___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010798
SUFFIX

RECON

DATE BOARDED
20071115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.