IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080003890 


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 he be reinstated on the TDRL (Temporary Disability Retired List) and reevaluated for placement on the Retired List by reason of physical disability. 

2.  The applicant states, in effect, that he was placed on the TDRL and received a letter from TRICARE stating that he was ineligible for benefits.  He went to Balboa Hospital (also known as the Naval Medical Center, San Diego, California [NMCSD]), and was told he had been removed from the TDRL.  He had not received any orders to go for another evaluation, which would have been his third re-evaluation.  He had completed two of the evaluations at NMCSD and had been expecting to receive another letter but had not received anything.  He called personnel and was directed to this Board.  He states that he needs to be removed from the TDRL and placed on the Permanent Retired List, not just administratively removed.

3.  The applicant states that the Army has rated him at 30 percent and the VA (Department of Veterans Affairs) rated him at 60 percent.  He has not magically gotten any better.  He is in the same state, only now with weight-related issues.  He has not received any contact from anyone and needs to be reinstated on the TDRL and placed on the Permanent Retired List.  He is left without TRICARE for his family and base privileges.  He has called many numbers and spoken to many more people and received the same response all around, "we can not change/do that from here."  At this time, he does not know where to go or what to do.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); medical documentation from the NMCSD; a copy of separation orders; and a copy of orders removing him from the TDRL in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 24 January 1996.  He was trained as an M1 Abrams Armor Crewman, in military occupational specialty (MOS) 19K.  He was promoted to specialist four (SP4)/E-4 effective 1 January 1998.  

2.  The applicant's MEB (medical evaluation board) and PEB (physical evaluation board) are unavailable for review.  A review of iPERMS (Interactive Personnel Management System) failed to show a copy of his MEB or PEB.

3.  The applicant was honorably released from active duty on 10 May 2002, under the provisions of Army Regulation 635-40, paragraph 4-24b(2), by reason of disability, temporary, in pay grade E4, with a 30 percent disability rating.  He was placed on the TDRL effective 11 May 2002.  He had completed 6 years, 3 months, and 17 days of creditable service.

4.  The mailing address on the applicant's DD Form 214 was "1357 East Washington, Apartment B, El Cajon, California, 92012."

5.  On 4 October 2002, the applicant was reevaluated by physicians at the NMCSD for, in effect, a psychiatric evaluation.  He was diagnosed as having a major depressive disorder, single episode, moderate severity; spinal fibrosis; and problems with the primary support group, occupational problems.  The physician indicated that the applicant was on several medications.  He reviewed his medication regime, which was extensive, and indicated that there could be some effect of his medication level being potentiated by the other medications.  The applicant was offered cognitive behavioral therapy group meetings for the next nine Wednesdays.  It was hope that, in working through the group, he would be able to come to better grips with his physical injuries.  He was instructed to follow up in four weeks to determine his progress on medication as well as how he was handling the confrontation that inevitably occurs in cognitive behavioral therapy group.

6.  On 3 June 2003, the applicant was seen again at the NMCSD for his first periodic physical examination.  The physician indicated that the applicant was previously examined at the Landstuhl Regional Medical Center in Germany with 
the following diagnosis:  Migraine headaches without aura; S/P L5-S1 diskectomy with chronic left leg pain; and left shoulder pain with normal radiographs and essentially normal range of motion.  The physician elaborated on the applicant's present symptoms.  He concluded that the applicant was currently being seen at the mental health clinic, NMCSD, on a regular basis for his depression, was on medication, and under good control.

7.  On 21 April 2004, the PEB Liaison Officer, US Army Medical Department Activity, prepared a memorandum for the Commander, NMCSD, Subject:  Request for TDRL Periodic Physical Examination.  The PEB, liaison officer, informed the Commander, NMCSD, that the applicant required an appointment with the Neurology Clinic, in order to complete his TDRL re-examination.  His current mailing address was listed as "4534 34th Street, Apartment 13, San Diego, California  92116.” 

8.  The applicant was removed from the TDRL effective 9 May 2007 for failing to complete a scheduled physical re-examination required by law without entitlement to severance pay.  His address listed at that time was "4046 Mount Alifan Way, San Diego, California  92111-2513."

9.  On 14 May 2007, the Chief, Operations Division, USAPDA (United States Army Physical Disability Agency), informed the applicant that DFAS (Defense Finance and Accounting Service) was notified and that he would receive no further Army retired payments after the effective date.  Payments made after the effective date were to be considered overpayments.

10.  The applicant provides a copy of his VA Rating Decision, dated 11 June 2008, which shows that he was previously granted a 60 percent service connected disability for degenerative disk disease, lumbosacral spine, status post diskectomy, and 10 percent for Rotator cuff disease, left shoulder (minor).  

11.  The rating decision shows that he was granted a 70 percent disability rating for service-connected depressive disorder; 60 percent disability rating for degenerative disk disease, lumbosacral spine, status post diskectomy; and 50 percent for service-connected migraine headaches, with visual aura.

12.  An advisory opinion was provided by the USAPDA, dated 30 July 2008.  The PDA states that the applicant was placed on the TDRL on 10 May 2002, with a 30 percent disability rating.  His case was reviewed by the PEB while on the TDRL after he received interim TDRL medical re-evaluations.  The PDA states that it appeared that the applicant lived in El Cajon, California, during these prior re-evaluations.  The applicant was requested to again report for a final medical 
re-evaluation in accordance with Army Regulation 635-40, chapter 7, and USC (United States Code) 1210.  The applicant was not authorized to remain on the TDRL beyond 5 years, or in his case 10 May 2007.  The PDA states that the applicant did not respond to the requests to report for his final re-evaluation.  It appeared from the applicant's cited address on his application for correction of military record that he subsequently moved to Spring Valley, California, after his last medical re-evaluation.  The PDA had no record that the applicant provided their agency with his new address, as required, so that he could be properly notified.  Based upon the expiration of his 5 years on the TDRL, and the fact that he did not respond to the PDA's requests to report for a final medical re-evaluation, the agency was required to remove the applicant from the TDRL without any benefits or disability compensation.

13.  The PDA states that there did not appear to be any error in the removal of the applicant from the TDRL.  The PDA, as a standard business practice, always notifies Soldiers on the TDRL before removal at the 5 year limit.  The applicant had a responsibility to maintain his proper address with the PDA.  The PDA concluded that because he failed to do so, he forfeited his right to continue military disability compensation.

14.  The applicant was provided a copy of the advisory opinion for possible comment prior to consideration of this case.  The applicant was provided 30 days to submit matters in his own behalf.  The applicant failed to respond within the time allotted. 

15.  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 AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

16.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Army Human Resources Command (AHRC) upon the final decision of the PDA.  It states that AHRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the USADPA 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. 
17.  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, USC, 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. 

18.  Paragraph 7-4 pertains to requirement 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, AHRC, acting on behalf of the SA (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, AHRC.  Soldiers who fail to complete a physical examination when ordered will have their disability retired pay suspended. Soldiers on the TDRL will notify Commander, HQ, USAPDA (AHRC-PDB), Building 7, WRAMC, 6900 Georgia Avenue, NW, Washington, DC 20307–5001, of any change in their current mailing address.

19.  Paragraph 7-11, of the same regulation, pertains to disposition of the TDRL Soldier.  Subparagraph 7-11b(4) pertains to removal on 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, AHRC 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, AHRC 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 USC 61.

20.  Paragraph 7-12 pertains to restoring eligibility.  AHRC 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 AHRC will notify the Chief, Retired Pay Division, USAFAC (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 Army Board for Correction of Military Records (ABCMR).

21.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. 

22.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

23.  Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was honorably separated from active duty for disability on 10 May 2002 with 30 percent disability.  He was placed on the TDRL effective 11 May 2002.  He listed "1357 East Washington, Apartment B, El Cajon, California, 92012" as his mailing address.  It appears that the applicant resided in El Cajon, California, during his prior re-evaluations.  

2.  The applicant was informed on 21 April 2004 by PEBLO to report to the Neurology clinic in order to complete his re-evaluation at the NMCSD.  At that time, his address was listed as "4534 34th Street, Apartment 13, San Diego, California, 92116."  

3.  The applicant was later removed from the TDRL effective 9 May 2007 for failing to complete a schedule physical re-examination required by law.  At that time his address was listed as "4046 Mount Alifan Way, San Diego, California  92111-2513."  DFAS was notified of his termination and the applicant was informed that he would receive no further retired payments after the effective date. 

4.  The applicant has failed to show just cause for failure to respond to official notice of his re-examination.  Therefore, he is not entitled to reinstatement on the TDRL and re-evaluation for placement on the Permanent Retired List. 
5.  The applicant applied to VA for service-connected disability compensation after his release from active duty.  He was awarded a combined rating of 100 percent for his service-connected disabilities.

6.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service-related physical conditions cause social or industrial impairment after a Soldier's discharge.

7.  Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings based on those policies and regulations and have no bearing on what the Army did in processing the Soldier for medical separation.  

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

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.



      __________x____________
               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)                                         AR20080003890



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ABCMR Record of Proceedings (cont)                                         AR20080003890



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