IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080002291 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be reviewed and that he be placed on the permanent disability retired list.

2.  The applicant states, in effect, that he was diagnosed at Walter Reed Army Medical Center (WRAMC), Washington, DC, with nephrotic syndrome and muscle myopathy.  He was supposed to be released from the military at that time based on his diseases.  He believes that due to his lack of regulatory knowledge, he suffered further damage by not being released.

3.  The applicant adds, in effect, that he acquired multiple knee problems but they were never taken into consideration when he was released.  He believes that some information concerning his medical situation was never discussed with him.

4.  The applicant further adds, in effect, that when he complained of his sickness, the chief warrant officer threatened to file malingering charges against him.  Because of the accusation, he settled down even though he had been feeling sick for about 2 months.  He was afraid of the financial implications that the warrant officer could impose upon him.  When he finally decided that he did not care what the ramifications would be, he went to the clinic and demanded medical attention.  That is when he was finally diagnosed.  When the chief warrant officer performed his Medical Evaluation Board (MEB), he received a 0 percent rating.  This prolonged his expiration of term of service date by 5 months.

5.  The applicant states, in effect, that he was placed on the TDRL (Temporary Disability Retired List) upon exiting from the military.  The records show he missed his physical examination in 1999.  He has no recollection of any paperwork.  He would never knowingly ignore something of such importance.  He has had nothing but problems trying to prove his case now and he has been through so much.

6.  The applicant summarizes by stating that he wants his case to be reviewed and he would like to know if there are any financial restitutions for which he is eligible.  He feels that a lot of medical issues were omitted or not addressed during his military career.  If something can be done, he wants fair treatment; and, if anything on his part hindered the progress, he sincerely apologizes.

7.  In support of his request, the applicant provides a self-authored addendum detailing, from his perspective, events and issues related to his being processed for a medical discharge from the Army and his being "dropped" from the TDRL; and 28 separate pages of copied documents which include:  progress notes, copies of rating decisions rendered by the Department of Veterans Affairs on 20 June 2005 and on 23 December 1997, Standard Forms (SF) 600 (Chronologic Record of Medical Care), DA Forms 3647 (Inpatient Treatment Record Cover Sheet), DA Form 4700 (Medical Record - Supplemental Medical Data), SF 513 (Consultations Sheet), and SF 519-B (Radiological Consultation Request/Report).

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 evidence shows the applicant enlisted in the U.S. Army Reserve on 15 November 1989.  On 9 January 1990, he enlisted in the Regular Army.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 91B, Medical Specialist.

3.  On 7 September 1993, a permanent physical profile of P-3, U-3, L-3, H-1, E-1, S-1, was imposed on the applicant due to the results of multiple medical conditions which included glomerulosclerosis with moderate renal insufficiency, nephrotic syndrome with hypertension, and metabolic myopathy with partial phosphorlase B deficiency.  The DA Form 3349 that was prepared and which imposed the assignment limitations was approved on 14 October 1993.  The applicant was recommended, in addition to having assignment limitations imposed upon him, for referral to an MEB.

4.  On 18 February 1994, the applicant appeared before an MEB at Guthrie Army Community Hospital, Fort Drum, New York.  He was diagnosed as having chronic glomerulonephritis, renal insufficiency, nephrotic syndrome, high blood pressure, metabolic myopathy, sickle cell trait, reactive airway disease, and a history of chronic sinusitis.  The applicant was referred to a physical evaluation board (PEB).  The DA Form 3947 (MEB Proceedings) indicates the applicant did not desire to continue on active duty at the time; however, the board determined that continuance on active duty was not medically contraindicated.  The approval authority approved the board findings and recommendation on 24 February 1994.  The applicant was informed of the approved findings and recommendation of the board, and he agreed with the board's findings and recommendation on 2 March 1994.

5.  On 23 February 1994, the applicant was provided an Information Sheet, subject:  Transition Assistance Counseling, in which he was notified that he must receive transition counseling before his MEB packet was forwarded to the PEB for review.  The applicant acknowledged the notification on the same date.

6.  A DA Form 5893-R (PEBLO (Physical Evaluation Board Liaison Officer) Counseling Checklist/Statement) was completed on 2 March 1994.  The principal purpose of the form was to explain disability evaluation and to ensure the performance of such counseling was a matter of record.

7.  By having signed the DA Form 5893-R, the applicant acknowledged that he had read the MEB report and the narrative summary and had been asked whether all medical conditions and physical defects were covered in the narrative summary and whether they were adequately described.  It had been explained to him by the PEBLO how more evidence could be presented for the consideration of the MEB, and he was advised of MEB appeal procedures.

8.  In the last item in Section IV of the DA Form 5893-R, a checkmark appears and indicates that the applicant was informed of requirements for placement on the TDRL, the maximum tenure on the TDRL, the requirements for periodic medical examination and PEB evaluation, the minimum rate of retired pay while on TDRL, that while on the TDRL no change would be made in the disability rating, and the criteria for retention on the TDRL.  In addition, the applicant was advised that if the PEB recommended retention on the TDRL, he could not appeal the recommendation since his status was not being changed and that failure to report for a scheduled examination and to keep the U.S. Army Total Personnel Command (PERSCOM) [now the U.S. Army Human Resources Command (HRC)] informed of his current address would result in the suspension of retired pay.

9.  On 28 March 1994, a PEB which convened at WRAMC considered the applicant's medical conditions as described in the records and, based on a review of these records, the PEB concluded that his medical condition prevented satisfactory performance of duty in his grade and MOS.  The PEB recommended the applicant be placed on the TDRL with a 60 percent disability rating in the rank of specialist with reexamination during 1 September 1995.  The applicant concurred with the board's findings and recommendation and waived a formal hearing of his case.  The retirement address given by the applicant for after retirement was 1009 S___ F___ S___, Brinkley, Arkansas.

10.  The applicant was honorably separated for the purposes of temporary disability retirement in the rank and pay grade of specialist, E-4, on 18 May 1994 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3).  On the date of his placement on the TDRL, the applicant had completed 4 years, 4 months, and 10 days active military service with no time lost.

11.  A copy of TAPD-PDB Orders D75-13, Headquarters, PERSCOM, dated 20 April 1994, in the applicant's service record show he was to be placed on the TDRL on 19 May 1994 with a 60 percent disability rating.  The mailing address given by the applicant for after retirement was 1009 S___ F___ S___, Brinkley, Arkansas.

12.  A copy of a DA Form 3713-E (Data for Retired Pay) on file in the applicant's service record also shows he was placed on the TDRL on 19 May 1994.  This form shows his mailing address after retirement was to be 1009 S___ F___ S___, Brinkley, Arkansas.

13.  On 19 June 1995, the applicant was provided Letter Orders D09-019 prepared by the PERSCOM in which he was notified to appear at Dewitt Army Community Hospital, Fort Belvoir, Virginia, for a periodic physical examination.  The notice was sent to the applicant at 833 L___ S___, Apartment ___, Herndon, Virginia.

14.  On 2 November 1995, based on the TDRL examination the applicant underwent, a recommendation was made that given the applicant's progressive renal dysfunction, he did not appear to be medically acceptable for active duty service at the time.

15.  On 16 November 1995, the applicant was provided a notification of TDRL reevaluation by certified mail.  The applicant signed for this notification on 20 November 1995.  The address used by the applicant at that time was 262 W___ M___, Sterling, Virginia.

16.  On 3 January 1996, the PEB convened at WRAMC and reevaluated the applicant's medical conditions.  Based on this reevaluation, the PEB recommended that the applicant be retained on the TDRL with reexamination during June 1997.

17.  On 3 April 1997, the applicant was provided Letter Orders D06-147A prepared by the PERSCOM in which he was notified to appear at Darnell Army Community Hospital, Fort Hood, Texas, for a periodic physical examination.  The notice was sent to the applicant at 2008 E___ P___, Apartment ___, Irving, Texas.

18.  The applicant underwent his TDRL periodic physical examination as required in May and in June 1997.  The TDRL results show that given his progressive renal dysfunction, the TDRL narrative summary indicated he did not appear to be medically acceptable for active duty and service at the time.

19.  On 9 July 1997, the applicant was provided a notification of TDRL reevaluation by certified mail.  He was provided a copy of a memorandum, subject:  Notification of Periodic TDRL Physical Evaluation Action, in which he was required to signify his agreement or disagreement with the findings and recommendation of the board within 7 days of receipt of the letter.  A note was annotated at the bottom of the file copy of the memorandum which indicates that the applicant failed to acknowledge the notification within the 7-day period.  The notification was sent to 2008 E___ P___, Apartment ___, Irving, Texas.

20.  The evidence shows the applicant signed for his Notification of Periodic TDRL Physical Evaluation Action on 31 July 1997.  The address used by the applicant at that time was 2008 E___ P___, Apartment ___, Irving, Texas.

21.  On 14 August 1997, the applicant was notified that based on his most recent medical evaluation and all other medical records, the PEB recommended that he be retained on the TDRL with reexamination during the month of August 1998.  The address used by the applicant at that time was 2008 E___ P___, Apartment ___, Irving, Texas.
22.  On 19 December 2000, the applicant was provided Letter Orders D-02-219, prepared by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC.  He was scheduled for a periodic physical examination at Darnall Army Community Hospital, Fort Hood, Texas.  With this memorandum, he was provided a copy of the notice that was sent to the Commander, Darnall Army Community Hospital, subject:  Medical Examination Temporary Disability Retirement List, notifying the hospital commander that the examination was to be conducted at that facility.

23.  On 23 January 2001,the PEB Liaison Officer, U.S. Army Medical Department Activity, Fort Hood, Texas, notified the applicant his temporary disability retirement packet had been received at Darnall Army Community Hospital and his periodic physical examination would be conducted there during the month of February.  The notification was sent to 2008 E___ P___, Apartment ___, Irving, Texas.  This correspondence was sent to the applicant by certified mail - return receipt requested but was returned to the sender marked, "Return to Sender - Unclaimed."

24.  On 31 January 2001,the PEB Liaison Officer, U.S. Army Medical Department Activity, Fort Hood, Texas, notified the applicant his periodic physical examination was scheduled for 27 February 2001 at Darnall Army Community Hospital.  The notification was sent to 2008 E___ P___, Apartment ___, Irving, Texas.  This correspondence was sent to the applicant by certified mail with a return receipt requested but was returned to the sender marked, "Return to Sender - Unclaimed."

25.  On 5 February 2001, the applicant was sent a memorandum, subject:  Periodic Physical Examination for Soldiers on the Temporary Disability Retirement List.  The notification was sent to 2008 E___ P___, Apartment ___, Irving, Texas.  There is no indication in the applicant's records if the notice was sent either by registered or certified mail and if the applicant receipted for the same.

26.  On 15 March 2001, the PEB Liaison Officer returned the applicant's TDRL packet to WRAMC.  Although it is not said in the memorandum, it appears the applicant did not report for his periodic TDRL physical examination during the month of February 2001.

27.  On 31 May 2001, in an internal note, Beth wrote to Jan [believed to be employees of the USAPDA] and asked her to cut a "failure to report letter" due to the applicant's non-compliance [failure to report for his periodic TDRL physical examination].

28.  On 7 December 2001, the USAPDA sent a letter to the applicant, subject:  Administrative Removal from the Temporary Disability Retired List (TDRL).  He was notified that as a member of the TDRL, he was required by law to undergo physical examinations as ordered by the Secretary of the Army.  This requirement existed even if he waived his Army retired pay in favor of Veteran's Affairs compensation.  He was further notified that their records indicated that he did not comply with competent orders and his eligibility to receive Army retired pay and his military identification card privileges were terminated.  The notification was sent to 2008 E___ P___, Apartment ___, Irving, Texas.  There is no indication in the applicant's records if the notice was sent by registered or certified mail and if the applicant receipted for the same.

29.  On 2 February 2002, the USAPDA published orders notifying the applicant he had been removed from the TDRL with an effective date of 18 May 1999.  He was advised he had failed to complete a scheduled physical examination as required by law.  Because of this, he was administratively removed from the TDRL on the date indicated without entitlement to severance pay.  In the additional instructions of the orders, a comment appears that states, "Removal is based upon failure to comply and five years maximum tenure on the Temporary Disability Retired List."  The orders were addressed to the applicant and were sent to 2008 E___ P___, Apartment ___, Irving, Texas.  There is no indication in the applicant's records if these orders were sent to the applicant by registered or certified mail and if the applicant receipted for the same.

30.  On 1 March 2002, a letter, subject:  Removal from Temporary Disability Retired List, was sent to the applicant at 2008 E___ P___, Apartment ___, Irving, Texas.  He was again advised he had been removed from the TDRL with an effective date of 18 May 1999 since he had not appeared for a scheduled medical examination subsequent to being placed on the TDRL.  He was further advised that the USAPDA could make no factual determination as to his entitlement to benefits.  Accordingly, the USAPDA was required to remove him from the TDRL without entitlement to benefits.  There is no indication in the applicant's records if this letter was sent to the applicant by either registered or certified mail and if the applicant receipted for the same.

31.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

32.  Of the 28 separate pages of copied documents the applicant submitted with his request, 10 were related to other medical issues that were not already considered during the conduct of the MEB/PEB process.  The applicant did have bilateral knee pain for which he was provided treatment but the applicant provided no evidence he was issued a physical profile for this knee pain.  The applicant was also seen by medical treatment personnel for tendonitis of the right knee.  Again, the evidence shows he was provided medical treatment for the tendonitis; however, the applicant provided no evidence he was given either a temporary or a permanent physical profile at the time.

33.  Army Regulation 635-40 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

34.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the HRC upon the final decision of the USAPDA.  It states that HRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the USAPDA for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(2) applies to placement on the TDRL.

35.  Army Regulation 635-40, 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, U.S. 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. 

36.  Paragraph 7-4 pertains to requirements for periodic medical examination and PEB evaluation.  It states that 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 have waived retired pay to receive compensation from the VA continue to be retired Army Soldiers.  These Soldiers must undergo examinations when ordered by Commander, HRC, acting on behalf of the Secretary of the Army.  Soldiers recalled to active duty while still on the TDRL must also undergo a periodic examination when ordered by the Commander, HRC.  Soldiers who fail to complete a physical examination when ordered will have their disability retired pay suspended.  Soldiers on the TDRL will notify Commander, USAPDA (AHRC-PDB), Building 7, WRAMC, 6900 Georgia Avenue, NW, Washington, DC  20307–5001, of any change in their current mailing address.

37.  Paragraph 7-11 of the same regulation pertains to disposition of TDRL Soldiers.  Subparagraph 7-11b(4) pertains to removal on the fifth anniversary.  It states that 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, HRC will make a final attempt to contact the Soldier and arrange a final examination.  If this fails and the Soldier does not undergo a physical examination, 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 Title 10, U.S. Code, section 61.

38.  Paragraph 7-12 pertains to restoring eligibility.  HRC may restore the Soldier’s eligibility to receive disability retirement pay if, after failure to report for and complete the required periodic examination, the Soldier later satisfactorily meets the examination requirements.  The HRC will notify the Chief, Retired Pay Division, U.S. Army Finance and Accounting, to restore disability retired pay retroactive to the date the Soldier undergoes the examination provided the Soldier is still qualified for retention on the TDRL.  The Soldier’s eligibility to receive retired pay may be made retroactive not to exceed 1 year if the Soldier can show just cause for failure to respond to official notice or orders.  A Soldier’s name may have been removed from the list as provided in paragraph 7-11b(4).  If so, the Soldier may make application to the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  In his application to the Board, the applicant asserted that a certain chief warrant officer threatened to file malingering charges against him apparently for reporting to him that he was sick.  He claims he was afraid of the financial implications that the warrant officer could impose upon him.  When he finally decided that he did not care what the ramifications would be, he went to the clinic and demanded medical attention.  When the chief warrant officer performed his MEB, he received a 0 percent disability rating.  Contrary to the applicant's assertions, there is no evidence in the applicant's case file to support this allegation.  MEBs are not responsible for assessing or recommending a disability rating.  Among the MEB's responsibilities are to determine if a Soldier is medically qualified to perform the duties of his or her rank and specialty and if he or she should be referred to a PEB for further evaluation.

3.  The applicant contends that he acquired multiple knee problems but they were never taken into consideration when he was released.  He believes that some information concerning his medical situation was never discussed with him; however, the evidence shows that he was advised and it was explained to him by the PEBLO how more evidence could be presented for consideration by the MEB.  The evidence also shows that the applicant had been asked to determine whether all medical conditions and physical defects were covered in the narrative summary and whether they were adequately described.  The evidence indicates that he had read the MEB report and the narrative summary and knew, or should have known, the full extent of what he was being evaluated for, especially in view of the fact that he held a medical specialty.

4.  The evidence shows applicant had plenty of opportunities to have new information pertinent to his medical challenges introduced.  The opportunities presented themselves before his records were actually submitted to the MEB and to the PEB.  After each of these boards, the evidence shows that he concurred with the findings and recommendations of the boards and took no action to introduce documentary evidence of problems he had endured with his knees.  Additionally, he could have introduced the medical information each time he was summoned and each time he reported for medical reevaluation in connection with determinations whether he should be retained or removed from the TDRL.

5.  The evidence in this case is clear.  It was the applicant who did not avail himself of opportunities to present medical conditions and documentary evidence he now submits to this Board for consideration which could have had an impact on the decisions arrived at by those boards at the time they were considering his case.  From all available evidence and from the specifics of this case, the applicant is not now eligible to seek an adjustment to the MEB/PEB determination which resulted in his being placed on the TDRL and whose maximum allowable time limitation to be on that list has expired.

6.  The applicant, in his own words, stated that he missed his physical examination in 1999 and that he has no recollection of any paperwork and that he would never knowingly ignore something of such importance.  However, the evidence shows that he was provided counseling by the PEBLO and was specifically told that he was to keep personnel officials apprised of his address at all times.  The evidence shows that he kept personnel officials apprised of his address in those years immediately after his being placed on the TDRL.  This is evidenced by the fact that he received his notices for physical examinations/reevaluations and reported as ordered; but, at the end of this third year on the TDRL, he abandoned this practice.  The evidence shows that he moved from his Irving, Texas, address and notices that were sent to him were returned unclaimed.  Because he did not receive correspondence related to his retention on the TDRL, personnel officials were forced by applicable regulation to remove him from the TDRL retroactively at the fifth year of his having been on the TDRL.  The patience and concern of personnel officials who managed the TDRL process is evident.  They did not take action to remove him from the TDRL until 7 December 2001, over two years after the maximum time he could be retained on the TDRL had passed.  By regulation, the applicant was removed from the TDRL without any benefits or disability compensation on 18 May 1999, the fifth anniversary of his being placed on the TDRL.

7.  The applicant, it is clear, had the responsibility to report an address change each time he moved and to keep personnel officials involved with the TDRL process apprised of his current address so that they could contact him as the need arose.  In those years after his last recorded physical examination/reevaluation when he did not receive correspondence from personnel officials, he could have helped himself by taking the initiative and calling them to determine if there were actions required of him and to inquire of any action(s) that might be necessary for his transfer to the permanent physical disability retired list or removal from the TDRL.  Because he failed to do so, he forfeited his right to continued military disability compensation and a possible transfer to the permanent physical disability retired list.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  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.



      __________XXX_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002291



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