IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080004587 


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, reconsideration of his previous request to be reinstated on the Temporary Disability Retirement List (TDRL).

2.  The applicant does not provide a statement with his request for reconsideration.

3.  The applicant provides, through a representative of the American Legion, a synopsis of medical treatment and a vital signs chart as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011997, on 29 November 2007.

2.  The applicant provides new evidence in the form of a one-page, undated, and unsigned, statement which is handwritten on the letterhead of a hospital.  He also provides a one-page Vital Signs Chart.  These two documents were not previously reviewed, therefore, they are considered new evidence and as such warrant consideration.


3.  The applicant's record shows he enlisted in the United States Army Reserve on 26 March 1998 and in the Regular Army on 17 June 1998.  Upon successful completion of basic combat training and advanced individual training, he was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest grade he led was private first class (PFC)/pay grade E-3.

4.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 May 2000, shows the applicant was examined at Walter Reed Army Medical Center (WRAMC) and was diagnosed as having schizophrenia and that his condition was diagnosed in line of duty (LOD).

5.  On 25 May 2000, the applicant was issued a permanent profile of 111114, due to schizophrenia.  The applicant's commander determined that his permanent profile required a change in his MOS and duty assignment.

6.  On 5 June 2000, the applicant's case was considered by a Medical Evaluation Board (MEB) at WRAMC.  The MEB diagnosed the applicant's condition as medically unacceptable in accordance with Army Regulation 40-501.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB).  The applicant indicated that he did not desire to continue on active duty. The findings and recommendations were approved on 25 August 2000.  The applicant concurred with the MEB's findings and recommendations on 25 August 2000.

7.  On 30 August 2000, the applicant's case was considered by an informal PEB at WRAMC.  The PEB stated that based on a review of the medical evidence of record, it concluded that his medical condition prevented satisfactory performance of duty in his grade and specialty.  The PEB recommend a combined rating of 30 percent and placement on the TDRL.  The PEB indicated that his retirement was not based on a disability resulting from an injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.  The applicant concurred with the results of the PEB and waived a formal hearing of his case on 19 September 2000.  The PEB recommend reevaluation in March 2001 and March 2002.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty on 22 November 2000, under the provisions of Army Regulation 635-40, paragraph 4-24b(2), for temporary disability.  He was placed on the TDRL, in the pay grade of E-3 effective 23 November 2000, by reason of physical disability.  He had completed 2 years, 5 months, and 6 days of creditable service.

9.  United States Army Physical Disability Agency, Washington DC, Letter Orders D 08 -185, dated 20 May 2002, attached the applicant to Ireland Army Community Hospital, Fort Knox, Kentucky, for the purpose of a periodic physical examination.  He was examined by a physician on 24 June 2002.  The physician indicated that the applicant had not been mentally hospitalized since, in effect, his release from active duty and placement on the TDRL and had not recently taken any medications to control his condition.  The physician noted the applicant's condition appeared to be in remission; his condition had improved significantly, and appeared to be stable.  The physician was not able to discern any impairment of social or occupation functioning.  This evaluation was approved for submission to the PEB on 28 June 2002.

10.  On 13 July 2002, the applicant acknowledged that he had been informed of the approved findings and recommendations of the PEB and concurred with the narrative summary of the TDRL periodic examination.

11.  On 22 July 2002, the applicant's case was considered by an informal PEB at Fort Sam Houston, Texas.  The PEB indicated that he remained unfit to reasonably perform the duties required by previous grade and military specialty.  The PEB determined the applicant's current condition was sufficiently stable for final adjudication.  The PEB further determined the applicant was physically unfit and recommended a combined disability rating of zero percent.  The PEB concluded that the applicant was to be separated with severance pay if otherwise qualified.

12.  On 25 July 2002, the applicant was informed of the results of the PEB in writing and afforded an opportunity to make an election on his case.  

13.  On 12 August 2002, the Personnel Management Officer, US Army PEB, Fort Sam Houston prepared a memorandum for the Commander, US Army Physical Disability Agency (USAPDA), WRAMC, Subject:  Failure to Make an Election.  He indicated that the applicant had received the findings and recommendations of the informal PEB, dated 22 July 2002, as verified by Federal Express Tracking Report, delivered on 25 July 2002.  He informed the Commander, USAPDA that since the applicant failed to make an election within the prescribed time limits, his case was forwarded for further processing.

14.  United States Army Physical Disability Agency, Washington DC, Letter Orders D162-2, dated 21 August 2002, removed the applicant from the TDRL effective 21 August 2002, authorized his receipt of severance pay, and assigned him a disability rating of zero percent.

15.  Department of the Army Board for Correction of Military Records Letter, dated 30 November 2007, informed the applicant that his application had been denied on the basis that not enough evidence was presented to show that an error or injustice exists in his record.

16.  The applicant provides new evidence in the form of a one-page, undated, and unsigned, statement which is handwritten on the letterhead of a hospital.  The author of the statement indicates, in effect, the applicant was admitted to the hospital from 5 October 2001 through 21 October 2001 to receive treatment for mutism, refusing to eat, catatonic signs (waxy flexibility, automatic obedience, apathy, staring, and insomnia), malaria, and typhoid.  The author also states the applicant is continuously taking six psychotropic medications.

17.  The applicant also provides a one-page, unsigned Vital Signs Chart containing handwritten entries in the following categories:  Preath, P.B. (Blood pressure), Pulse, Temperature, Time, and Date.  The dates entered on the chart cover a period of 7 October through 19 October of an unspecified year.

18.  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, United States Code, section 1210 (Title 10, USC, 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. 

19.  Paragraph 7-7 of Army Regulation 635-40, states that medical examiner and adjudicative bodies will carefully evaluate each case.  They will recommend removal of the Soldier's name from the TDRL as soon as the Soldier's condition permits.  Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, USC, 1210.

20.  Paragraph 7-20 of Army Regulation 635-40 states, in pertinent part, that if the PEB recommends removal from the TDRL, the PEB will forward to the Soldier a DA Form 199 (PEB Proceedings) and letter of explanation by certified mail, restricted delivery, return receipt requested.  The letter will inform Soldiers of their rights and responsibilities.  It will provide the name, location, and telephone number of the PEBLO.  The Soldier will sign the original copy of the DA Form 199 and return it after giving his or her choice of options in block 13.  The copy of the DA Form 199 is the Soldier's copy.  If the certified mail receipt is not returned, or if the correspondence is returned undelivered, the PEB will try to verify the Soldier's address by contacting the proper agencies.  If a new address is obtained, the PEB will try to deliver the notice.  If not, a memorandum waiving the Soldiers right of election will be prepared.  If the receipt is returned but no election is received, the PEB president will prepare a memorandum waiving the Soldier's right of election for failure to respond. The certified mail receipt will be included in the case file as proof that the Soldier was notified.  The PEB president will forward the case file to USAPDA for final disposition. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be reinstated on the TDRL was carefully considered and determined to be without merit.

2.  The applicant was diagnosed as having a serious medical condition and appeared before an MEB.  The MEB determined his medical condition prevented satisfactory performance of duty in his grade and MOS and was medically unacceptable in accordance with Army standards.  The applicant concurred with the findings of the MEB, indicated that he did not desire to continue on active duty, and was subsequently referred to a PEB. 

3.  The PEB found the applicant unfit for continued military duty in accordance with Army standards, recommended that he receive a combined disability rating of 30 percent, and that he be placed on the TDRL.  The applicant was released from active duty and was placed on the TDRL effective 23 November 2000.  The PEB also recommended periodic reexaminations be conducted in March 2001 and March 2002.  

4.  The applicant was reexamined and appeared before second PEB on 22 July 2002.  It was diagnosed that the applicant's condition improved markedly and was in remission.  By his own admission, the applicant had not been hospitalized since being placed on the TDRL and was not currently taking any medications.  The PEB determined that although his condition had improved, he remained physically unfit, and was recommended for separation with severance pay for a combined disability rating of zero percent.

5.  The applicant was informed of the results of the periodic PEB and afforded provided an opportunity to dispute the findings.  The applicant he failed to make an election within the allocated time period, and his case was forwarded for final processing.  He was removed from the TDRL and was honorably discharged due to his permanent physical disability with a zero percent disability rating.

6.  Army Regulation 635-40 provides that an individual may be placed on the TDRL for the maximum period of 5 years and that medical examiners and adjudicative bodies will carefully evaluate each case.  They will recommend removal of the Soldier's name from the TDRL as soon as the Soldier's condition permits.  Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, USC, 1210.

7.  There is no evidence or indication that the applicant's disability was not sufficiently stable enough to be rated permanently, or that his condition could improve to the point where he could be returned to active duty.  The applicant has not provided any evidence to show that he was not properly rated for his disabilities.  The additional evidence provided by the applicant is insufficient to show that he should be reinstated to the TDRL.

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

9.  Any rating action by the Veterans Administration does not necessarily demonstrate an error or injustice on the part of the Army.  The Veterans Administration, 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.  

10.  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.  In absence of evidence to the contrary, the preponderance of evidence in the available records supports presumption of regularity in the physical disability evaluation process.

11.  Based on the foregoing, it would be inappropriate in this case to amend the applicant's records to show that he was eligible for reinstatement on the TDRL.


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 to amend the decision of the ABCMR set forth in Docket Number AR20070011997, dated 29 November 2007.




       _    ___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)                                         AR20080004587





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