IN THE CASE OF:	

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080018100 


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, reinstatement on the Temporary Disability Retired List (TDRL) for additional physical examination and reevaluation. 

2.  The applicant states, in effect, he believes he should have been placed on the Permanent Disability Retired List (PDRL).  He also states that he was never given an opportunity for a final medical examination and medical review board due to miscommunication.  He was contacted by Ireland Army Hospital, Fort Knox, Kentucky in August 2007.  At that time he responded with a telephone call to the number listed and talked to a person who advised him that they would get back in touch with him.  About a year later, August 2008, he received a notice requesting his response.  He responded in about 21 days with a telephone call to the number listed and was informed that his response was not timely and they had already referred the file for final discharge.  It is his opinion that he should have been afforded "due process" (60 days) to respond.  He thinks the case should be reopened and he should have a chance to be examined and considered by a medical review board for placement on the PDRL.

3.  The applicant provides no additional documentation in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel requests, in effect, correction to the applicant's retirement.  Counsel provides no additional documentation in support of the applicant's application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the United Army Reserve (USAR) in pay grade E-1 on 23 September 1994.  He completed training and was assigned military occupational specialty 51M, Firefighter.  He was ordered to active duty and entered on active duty on 26 May 1999.  

2.  On 6 August 2001, a Physical Evaluation Board (PEB) convened and considered the applicant's condition of narcolepsy manifested by sleep attacks and hypnagogic hallucinations and excessive fatigue.  The PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and specialty.  The PEB found that the condition had not stabilized to the point that a permanent degree of severity could be determined and placed him on the TDRL.  The PEB advised that while on the TDRL he would be scheduled for periodic medical reexaminations and reevaluations.  Failure to report for a scheduled examination or to notify the U.S. Army Physical Disability Agency (USAPDA) of an address change would result in the suspension of retired pay.  To assist in future evaluations, the PEB could request information from the applicant concerning his medical treatment while on the TDRL.  

3.  On 15 August 2001, after consulting with counsel, the applicant concurred with the findings and recommendations of the PEB.

4.  On 17 August 2002, the findings and recommendations of the PEB were approved on behalf of the Secretary of the Army.

5.  The applicant was released from active duty, in pay grade E-4, on 22 August 2002, under the provisions of Army Regulation 635-40, paragraph 4-24B(2), for physical disability and placed on the TDRL.

6.  Orders Number D246-07, dated 2 September 2008, published by the USAPDA were issued to the applicant administratively removing him from the TDRL without entitlement to severance pay and discharging him from the USAR on 23 August 2007.  The orders indicated he was being removed from the TDRL due to failure to complete a scheduled physical reexamination required by law.  Removal was based upon failure to comply and five years maximum tenure on the TDRL in accordance with Army Regulation 635-40, paragraph 7-11b(4).

7.  In a memorandum, dated 2 September 2008, the Chief, Operations Division, USAPDA, advised the applicant that several attempts had been made to contact him without success and that he was advised via a letter sent on 14 August 2008 that the agency would be required to remove him from the TDRL without entitlement to benefits.
8.  In an advisory opinion, dated 7 January 2009, the USAPDA Legal Advisor stated that the applicant was placed on the TDRL on 23 August 2002 for narcolepsy.  He was required to submit to TDRL medical reevaluations every    18 months and could not remain on the TDRL for more than five years in accordance with Army Regulation 635-40, Chapter 7 and Title 10, United States Code, section 1210.  The Agency's case files reveal that the USAPDA and the responsible Military Treatment Facility had attempted to contact the applicant since November 2003.  The case file was replete with numerous letters and records of phone calls to which the applicant did not respond and notifications that were returned as undeliverable.  The case file clearly showed a due and diligent effort was made during the entire five years to get the applicant to cooperate and report for his legally required TDRL reevaluations.  The case file did not contain any occasion that the applicant ever responded to the numerous requests for cooperation.  

9.  The USAPDA official also stated that in fact the USAPDA continued to attempt to obtain the applicant's cooperation way past his required removal date (end of five years) of 23 August 2007 and finally on 2 September 2008 removed him from the TDRL in accordance with paragraph 7-11b(4) of Army Regulation 635-40.  The applicant had shown no good cause for his failure to comply with the TDRL requirements and he was properly removed from the TDRL.  If it is believed that said removal was somehow unjust, the applicant may be authorized "reinstatement" for “additional physical evaluation” to complete his final TDRL evaluation.

10.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 9 January 2009.  He did not respond.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the basic authority for the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 4-24b (4) provides for separation for physical disability without severance pay.

12.  Army Regulation 635-40, Chapter 7, paragraph 7-4 requires 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 fail to complete a physical examination when ordered will have their disability retired 

pay suspended.  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.

13.  Army Regulation 635-40, paragraph 7-11b(4) also specifies that action will be taken when a periodic examination cannot be carried out.  If a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses to complete a medical examination, an effort to discover the reason will be taken.  If such action cannot be justified and the fifth anniversary of placement on the TDRL has not been reached, the U.S. Army Human Resources Command USAHRC will notify the Soldier and the Chief, Retired Pay Operations, Defense Finance and Accounting Service, to suspend retired pay.  USAHRC will keep the Soldier’s name on the TDRL until the fifth anniversary unless it is removed sooner by other action.  When reasonable efforts to locate the Soldier are unsuccessful, USAHRC will take the foregoing action.  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, USAHRC 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, he/she will be administratively removed from the TDRL on the fifth anniversary of placement on the list without entitlement to any of the benefits.

14.  Army Regulation 635-40, paragraph 7-12 specifies that USAHRC 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.  USAHRC will notify the Chief, Retired Pay Division, 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.

DISCUSSION AND CONCLUSIONS:

1.  In order to grant the applicant's request, he would have to show that either he was improperly or unjustly removed from the TDRL or he would have to show 

that he was never contacted or provided the opportunity to schedule his reevaluations and reexaminations and was denied the opportunity for placement on the PDRL.

2.  The evidence of record shows the applicant was aware that while he was on the TDRL he was required to report for scheduled periodic medical reexaminations and reevaluations.  The USAPDA official stated that based on a review of their case files attempts were made to contact the applicant since November 2003.  Numerous letters were mailed to the applicant and phone calls were made to no avail.  There is no evidence the applicant ever responded to the numerous requests.  The applicant's maximum period on the TDRL expired on 23 August 2007.  The evidence shows he remained on the TDRL after his five years had expired and that he had the opportunity to be reexamined and reevaluated until he was notified of his final removal from the TDRL in accordance with pertinent regulations on 2 September 2008.

3.  The applicant nor counsel provided any specific reason(s) as to why the applicant failed or was unable to undergo periodic examinations or respond to the previous attempts to contact him.  The entire concept of the TDRL is to place a Soldier in a temporary disability retired status to allow for the medical condition to stabilize.  In the applicant's case, he knew and had been advised that it was his responsibility to report for periodic examinations and to keep the USAPDA notified of any changes to his address, etc.  The case files of the USAPDA reveals that the Agency complied with the law and it appears the applicant made no attempt to comply.  As such, there is no basis for reinstating him on the TDRL.  
4.  While it is understandable that the applicant and his counsel would like his records corrected, there is no basis for making such a correction.  In the absence of information to the contrary, it is concluded that the applicant’s removal from the TDRL was correct and in accordance with applicable laws and regulations.

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)                                         AR20080018100



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ABCMR Record of Proceedings (cont)                                         AR20080018100


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