IN THE CASE OF:	  

		BOARD DATE:	       12 MARCH 2009

		DOCKET NUMBER:  AR20080015708 


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 that he be transferred to the Permanent Disability Retired List effective 1 October 2002.

2.  The applicant states that he was removed from the Temporary Disability Retired List (TDRL) effective 1 October 2002 because the U.S. Army Physical Disability Agency (USAPDA) was unable to contact him.  He contends that his home address (Phoenix, Arizona) was only valid for six months after his placement on the TDRL in October 1997, that he had to move several times due to schooling and employment, and that he remained in the Phoenix, Arizona area.  He indicates that he never received any information pertaining to undergoing military physical examinations, that he has been under the care of the Department of Veterans Affairs (DVA) since his discharge from active duty in 1997, and that the DVA has maintained his address on file.  He also points out that his current address was updated in his military personnel records effective 
2 October 2001 based on information he obtained from the Human Resources Command website and that coordination was accomplished with the USAPDA concerning whether all appellate procedures had been exhausted.  

3.  The applicant provides a letter, dated 24 April 2008, from the Army Review Boards Agency; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); an undated DVA Rating Decision; and an email, dated 
17 September 2008, from the USAPDA. 



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 enlisted in the Regular Army on 26 August 1996 and trained as an infantryman.  

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 February 1997, shows the applicant was involved in a motor vehicle accident on 19 December 1996 and he sustained a spinal cord injury. 

4.  The applicant's disability proceedings are not available.  

5.  On 1 October 1997, the applicant was released from active duty and placed on the TDRL the following day (100 percent).  

6.  In support of his claim, the applicant provided an email, dated 17 September 2008, from the USAPDA which states that his case was finalized by the USAPDA in 2002.  This email also states that when the applicant could not be contacted he was removed from the TDRL in accordance with Army Regulation 635-40  (Physical Evaluation for Retention, Retirement, or Separation), chapter 7, and Title 10, U.S. Code, section 1210 for failure to comply and expiration of the five year TDRL period. 

7.  Paragraph 7-4 of Army Regulation 635-40 states, in pertinent part, that a Soldier on the TDRL must undergo a periodic medical examination and Physical Evaluation Board (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 on the TDRL will notify Commander, HQUSAPDA (AHRC-PDB), Building 7, WRAMC, 6900 Georgia Avenue, NW, Washington, DC 20307-5001, of any change in their current mailing address.      

8.  Paragraph 7-11a (Action following periodic PEB evaluation or on fifth anniversary) of Army Regulation 635-40 states that the U.S. Army Human Resources Command (USA HRC) will remove a Soldier 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.  Paragraph 7-11b(1) (Soldier's failure to report or reply) of this regulation states that if a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses to complete a medical examination, USA HRC will make an effort to discover the reason.  If such action cannot be justified and the fifth anniversary of placement on the TDRL has not been reached, USA HRC will notify the Soldier and the Chief, Retired Pay Operations, U.S. Army Finance and Accounting Center, to suspend retired pay.  USA HRC will keep the Soldier's name on the TDRL until the fifth anniversary unless it is removed sooner by other action.  

9.  Paragraph 7-11b(4) (Removal on fifth anniversary) of Army Regulation 635-40  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, USA HRC will make a final attempt to contact the Soldier or proper civil authorities and arrange a final examination.  If this fails and the Soldier does not undergo a physical examination, USA 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 in Title 10, U.S. Code, chapter 61.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was removed from the TDRL on 
1 October 2002 because the USAPDA was unable to contact him was noted.  However, the governing regulation states that it is the Soldier's responsibility to notify the appropriate officials of any change in their current mailing address while on the TDRL.  

2.  Therefore, based on the available evidence administrative regularity is presumed in his removal from the TDRL and there is an insufficient basis for granting his request at this time.  



3.  If the applicant can provide DVA medical records/Rating Decisions for the years during his placement on the TDRL and especially for the years 2001 and 2002 he may apply for reconsideration.

4.  However, the applicant is advised that if he reapplies and if his request is favorably considered, a records correction to show he was permanently retired in October 2002 could heavily impact his DVA compensation.  The DVA might require him to refund all DVA compensation paid to him from 1 October 2002 to the present date.  The applicant is strongly advised to seek legal assistance to determine if he truly wishes to proceed with a request for reconsideration prior to making such a 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.



      ________XXXX______________
               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)                                         AR20080015708



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ABCMR Record of Proceedings (cont)                                         AR20080015708



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