IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080004798 


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 correction of his records to show he was permanently retired for disability.  Specifically, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), as follows:  

	a.  Item 28 (Narrative Reason of Separation) from “Temporary Disability Retirement” to “Permanent Disability Retirement”; and 

	b.  Item 25 (Separation Authority) from "AR 635-40, Paragraph 4-24B(2)” to “AR 635-40, Paragraph 4-24B(1).” 

2.  The applicant states that he was placed on the temporary disability retired list (TDRL) in November 2005 for the loss of use of his left leg and Post Traumatic Stress Disorder (PTSD), with reexamination in February 2007.  On 24 October 2006, he underwent a physical examination and was found fit for duty.  During the examination, the examining doctor did not examine his leg or his PTSD, but asked him if he wanted to stay in the Army and that he elected to stay; so, the examining doctor wrote up the paperwork as such.  However, when he tried to enlist in the Army, he was medically disqualified.  Furthermore, he was also reevaluated by the Department of Veterans Affairs (VA) which granted him a 100 percent disability rating.  He questions the injustice where the Army doctor found him fit for duty, yet he could not enlist, while at the same time, the VA grants him a 100 percent disability rating, and concludes that he should not have been found fit for duty and should have been placed on the permanent retired list.  He also states that this is not about the money; rather, a personal thing. 

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 30 November 2005;

	b.  Electronic mail (email) exchange, dated on miscellaneous dates, with a Houston, Texas, recruiter;

	c.  U.S. Army Physical Disability Agency, Washington, D.C., Orders  D326-01, dated 21 November 2006, removal from the TDRL;

	d.  DA Forms 199 (Physical Evaluation Board (PEB) Proceedings), dated 15 August 2005 and 30 October 2006;

	e.  VA Rating Decision, dated 21 February 2008 and VA Letter, dated 29 February 2008, amended disability compensation; and

	f.  Chronological Record of Medical Care, dated 24 October 2006. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 3 February 2003.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

2.  On 26 August 2004, the applicant was involved in an Improvised Explosive Device (IED) blast, in Iraq, that peppered his body with shrapnel, with the most severe tissue damage occurring in the left lower extremity and flank.  He was treated at a local hospital and was subsequently evacuated to Germany for further treatment at Walter Reed Army Medical Center (WRAMC), Washington, D.C. where he underwent multiple orthopedic assessments and surgical procedures to remove shrapnel from the region of the deep left peroneal nerve.

3.  On 21 July 2005, a Medical Evaluation Board (MEB) convened at the U.S. Army Medical Department Activity (MEDDAC), Wurzburg, Germany, and determined that the applicant was medically unfit for duty due to peroneal nerve palsy, left, traumatic in origin; sensory loss, left lower leg and foot; and PTSD.  The MEB found his conditions of left ear sensory neural hearing loss and chest pain, medically acceptable.  The MEB recommended the applicant be referred to a PEB.  The MEB also noted the applicant did not desire to remain on active duty.
4.  On 15 August 2005, an informal PEB convened at WRAMC found the applicant's medical condition prevented him from satisfactorily performing the duties of his grade and specialty.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) as follows:

	a.  code 8523, left foot drop and sensory loss in the left lower leg and foot, secondary to severe injuries from an explosion.  His examination showed an antalgic gait (steppers gait) with a full range of motion of the hips and knees but with a reduced range of motion of the left ankle and foot.  The PEB recommended a 30 percent disability rating; and 

	b.  PTSD, secondary to severe life threatening injuries, manifested by nightmares, emotionally numbing, and avoidance of situations that remind him of the traumatic incident.  The PEB recommended a zero percent disability rating.  

5.  The PEB concludes that the applicant’s medical condition prevented him from performing the duties of his grade and MOS.  His condition had not stabilized to the point that a permanent degree of severity could be determined.  The PEB recommended a combined disability rating of 30 percent and that the applicant be placed on the TDRL with reexamination during February 2007.  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 30 November 2005 under the provisions of paragraph 4-24B(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  His narrative reason for separation is shown as "Physical Disability-Temporary."  He completed 2 years, 9 months, and 28 days of creditable active service.

7.  On 24 October 2006, the applicant underwent a medical examination at Fort Sam Houston, Texas, for his TDRL evaluation.  He submitted a statement certifying that he was no longer taking any prescribed medications for his PTSD and that the problems he was having before, related to his PTSD, had subsided.

8.  The examining physician remarked that the applicant had made a complete recovery and that he found no evidence of weakness on exam.  The applicant did not have neuropathy and that the neurological deficits noted in a prior examination in June 2005 have resolved.  The examining physician further added that he spent 50 percent of the time (35 minutes) involved in this visit counseling the applicant about his neurological condition and that all aspects of diagnosis, treatment options, care plans, and coordination of care were discussed.  

9.  On 24 October 2006, the applicant acknowledged that he was informed of the findings and recommendations of his TDRL physical examination and that he agreed. 

10.  On 30 October 2006, an informal PEB convened at Fort Sam Houston, Texas. Based on the review of the TDRL examination, this PEB found the applicant’s former disability, specifically, left foot drop and sensory loss secondary to an explosion injury in Iraq and PTSD, had resolved.  The PEB further noted that there were presently no restrictions which would preclude the applicant from returning to military service and no prohibition against normal physical activities expected for reasonable performance.  The TDRL Neurology Evaluator indicated that the applicant had made a complete recovery and does not have a personal neuropathy.  The applicant’s PTSD symptoms were no longer a current issue.  The PEB recommended the applicant be returned to duty as fit.  There is no indication that the applicant concurred, non-concurred, and/or demanded a hearing.  

11.  On 21 November 2006, the U.S. Army Physical Disability Agency, Washington, D.C., 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 enlist.  Orders Number D326-01 removing the applicant from the TDRL effective 21 December 2006 were published by the same agency, on the same day.

12.  On an unknown date, the applicant signed an election statement relative to enlistment stating that he declined to enlist in the RA within 90 days following his removal from the TDRL. 

13.  On 28 November 2007, by email addressed to a local recruiter in Houston, Texas, the applicant inquired about the status of his reentry into the Army.  However, by email, dated 30 November 2007, the applicant was notified that he was permanently medically disqualified.

14.  On 6 December 2007, by memorandum addressed to the Houston, Texas, Army Recruiting Battalion, the Officer of the Surgeon General, U.S. Army Recruiting Command (USAREC), Fort Knox, Kentucky, stated that the applicant’s medical waiver was reviewed, but disapproved.  The peculiar rigors of military training could further aggravate the medical condition in this case causing the high probability of subsequent lost time and/or assignment restrictions. 

15.  On 29 February 2008, by letter, the VA notified the applicant that due to the worsening of his service–connected PTSD disability, the combined evaluation of all his service connected disabilities was increased to 100 percent. 
16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and the Army National Guard for enlistment.  Section XII of this regulation governs special processing for Soldiers removed from the TDRL.  It states, in pertinent part, that as the result of a periodic physical examination, a former Army enlisted member may be determined physically fit for return to duty.  If so, the member may be enlisted in the RA or USAR when his or her name has been properly removed from the TDRL and if requirements of this section are met.  

	a.  Enlistments within 90 days of removal from the TDRL will be made without regard to basic enlistment qualifications for prior service (PS) persons described in chapter 3 of this regulation.  Such persons will be enlisted in the permanent pay grade held on the day before the date their names were placed on the TDRL.  Enlistment of such persons will be made without medical examination if:

		1.  No intervening illness or injury since the examination resulted in removal from the TDRL; and

		2.  The person signs a statement to that effect on DA Form 3283 (Statements of Member Removed from the Temporary Disability Retired List).

Persons who have incurred an illness or injury since the examination resulting in their removal from the TDRL must undergo a complete medical examination. They must qualify for enlistment under medical standards given in chapter 3 of Army Regulation 40-501.  (A person does not have to meet medical standards for the specific disability that caused his or her name to be placed on the TDRL.). Persons will be enlisted for 3 years in the RA.  Enlistment must be in the same component from which the Soldier was placed on TDRL.  The Military Entrance Processing Station (MEPS) will complete DD Form 4 (Enlistment/Reenlistment Armed Forces of the United States) and publish enlistment orders.  Assignment for MOS-qualified applicants, regardless of rank, will be obtained from the Army Human Resources Command.  Enlistment will be accomplished in the same manner as all other PS enlistment.  

	b.  Former enlisted members who do not enlist in their respective component within 90 days of removal from the TDRL must meet all PS standards and qualifications at time of enlistment.  Medical waivers for RA and USAR enlistment may be considered for former enlisted member if (a) their physical condition has improved so that they meet retention criteria for active duty in Army Regulation 635-40; and (2) their names consequently have been removed from 
the TDRL.  Requests for medical waivers will be sent to the approving authority. Include with waiver requests (1) DD Form 2808 (Report of Examination) and DD Form 2807–1 (Report of Medical History); (2) Copy of the Physical Evaluation Board proceedings and exhibits that caused the member’s removal from the TDRL; (3) Reports of subsequent and current treatment; (4) Reports of x-ray, orthopedic, surgical, medical, or other consultations; (5) Statement by a medical officer on the degree that the disability is incapacitating, the person's ability to care for his or her own needs, the person’s ability to perform useful service without undue hospitalization, and any prosthesis being used.

17.  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.

18.  Army 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 4-24B explains the final disposition of a PEB after review by the U.S. Army Physical Disability Agency (USAPDA).  It states that based upon the final decision of USAPDA, retirement orders are published, or other disposition action is taken, as follows:  

	a.  Permanent retirement for physical disability (10 USC 1201 or 1204).
	
	b.  Placement on the TDRL (10 USC 1202 or 1205).

	c.  Separation for physical disability with severance pay (10 USC 1203 or 1206).

	d.  Separation for physical disability without severance pay (10 USC 630, 12681, 1165, or 1169).

	e.  Transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer to the Inactive Reserve on the Soldier’s request (10 USC 1209).	

	f.  Separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence (10 USC 1207).

	
	g.  Release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit.

	h.  Return of the Soldier to duty when he/she is determined physically fit.

19.  Chapter 7 outlines procedures for administration and processing of Soldiers whose names are on the TDRL.  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 (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. Paragraph 7-7 states, in pertinent part, that medical examiners and adjudicative bodies will carefully evaluate each case and 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 10 USC 1210.

20.  Paragraph 7-11 outlines the action following periodic PEB evaluation.  A Soldier will be removed from the TDRL as described below on the fifth anniversary of the date the Soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB.

	a.  Permanent retirement.  If the Soldier meets the following criteria, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay: (a) the Soldier is unfit; (b) the disability causing the Soldier’s name to be placed on the TDRL has become permanent; and (c) the disability is rated at 30 percent or more under the VASRD, or the Soldier has at least 20 years of active Federal service;  

	b.  Separation.  A Soldier will be removed from the TDRL and separated with severance pay if the Soldier (a) has less than 20 years of service; (b) is unfit because of the disability for which the Soldier was placed on the TDRL; and either the disability has stabilized at less than 30 percent; or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent. A former Regular Army enlisted Soldier who would be separated under this authority may request a waiver to reenlist;  

	c.  Fit for duty. If a Soldier is determined physically fit to perform the duties of their office, grade, rank or rating (and is otherwise administratively qualified), former Regular Army enlisted Soldiers, subject to their consent, will be reenlisted in their regular component in the grade held on the day before the date place on 
the TDRL, or in the next higher grade.  If the Soldier does not consent to reenlistment, TDRL status and disability pay will be ended as soon as possible.  Former Soldiers of the U.S. Army Reserve (USAR), subject to their consent, will be reappointed or reenlisted in the USAR in the grade held on the day before the date placed on the TDRL, or in the next higher grade or transferred to the Retired Reserve, if eligible. They may request active duty, under USAR regulations.  Former Soldiers of the Army National Guard of the United States (ARNGUS), subject to their consent, may be reappointed or reenlisted in the ARNGUS in the grade held on the day before the date placed on the TDRL, or in the next higher grade if the proper State authorities reappoint or reenlist them in he Army National Guard (ARNG) of the State concerned.  They may request active duty. If the Soldier cannot be reappointed or reenlisted in the ARNG, and subject to the Soldier’s consent, he or she will be reappointed or reenlisted in the USAR or transferred to the Retired Reserve, if eligible.  If any Soldier above, has completed 20 years of active service when placed on TDRL, and does not consent to return to active duty upon being found fit for duty, the Soldier may request voluntary retirement by reason of length of service upon removal from the TDRL; and 

	d.  Unfit, Not in Line of Duty:  A Soldier may recover from the disability resulting in placement on the TDRL.  If while on the TDRL, the Soldier incurs another unfitting disability, the Soldier may be separated without benefits.  If the Regular Army Soldier had completed 20 years or more of active service when placed on the TDRL, the Soldier may request voluntary retirement.  If a USAR and had completed at least 20 qualifying years of service computed under 10 USC 12732 when placed on the TDRL, the Soldier may request transfer to the Retired Reserve or retirement if qualified under 10 USC 3911.

21.  If the PEB recommends removal from the TDRL, the PEB will forward to the Soldier DA Form 199 and letter of explanation by certified mail, restricted delivery, return receipt requested.  The letter will inform the Soldier of his or her rights and responsibilities. It will provide the name, location, and telephone number of the PEB Liaison Officer (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 Army Human Resources Command, the Military Treatment Facility, the Defense Finance and Accounting Services (DFAS), or the VA regional office.  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.  If the PEB 
recommends retention on the TDRL, the PEB will forward the DA Form 199 and a letter advising that there will be no change in the Soldier’s status or retired pay as long as the Soldier remains on the TDRL. Notification will be by ordinary mail. The DA Form 199 will include a statement that failing to notify USA HRC of the current mailing address will result in the suspension of disability retired pay if the Army is prevented from properly notifying the retiree of a scheduled examination.

22.  The 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.

23.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to full retirement benefits after removal from the TDRL.  The evidence of record shows that the applicant was involved in an IED attack in Iraq.  He underwent an MEB and a PEB, and was subsequently placed on the TDRL so that his condition could be monitored and fairly evaluated.  He underwent a periodic physical evaluation and was found fit, and was given the opportunity to enlist and remain in the Army.  However, the applicant elected not to enlist and was discharged by Orders Number D106-9, effectively terminating his status with the Army.  
2.  Soldiers who qualify for permanent disability retirement (rated at 30% or higher or with 20 or more years of active duty) 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.  

3.  Soldiers on the TDRL will receive their first medical re-evaluation as directed by the PEB, 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 12 to 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. 

4.  Enlistment may be either through entitlement or medical waiver.  There is no evidence that the applicant contacted a recruiter or the MEPS within 90 days of the date he was removed from the TDRL with intent to enlist or reenlist.  Had the applicant attempted to reenlist within the 90-day period, he would have been allowed to, without medical examination.  The email exchange between the applicant and his recruiter took place in November/December 2007 timeframe, suggesting that the applicant attempted to enlist after the 90-day period.  Accordingly, the applicant was not exempt from the retention standards required in effect at the time he applied for reenlistment.  

5.  Having not enlisted within 90 day, the applicant underwent a physical examination to ensure he met the "prior service" standards and qualifications.  A medical waiver was subsequently submitted to the U.S. Army Recruiting Command (USAREC).  Regrettably, the USAREC Surgeon General disapproved the applicant's request for a medical waiver.

6.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout placement and removal on the TDRL as well his subsequent attempt to reenlist.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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)                                         AR20080004798



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ABCMR Record of Proceedings (cont)                                         AR20080004798



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