IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090020148 


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 to be placed back on the Temporary Disability Retired List (TDRL).

2.  The applicant states he called to reschedule his appointment and he never received a new date to retake the examination.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 13 November 2002 for a period of 4 years.

2.  The results of the applicant's Physical Evaluation Board (PEB) showing the medical conditions for which he was placed on the TDRL are not available.  Neither the applicant's orders placing him on the TDRL nor the DD Form 214 (Certificate of Release or Discharge from Active Duty) are available for review.  However, iPERMS (interactive Personnel Electronic Records Management System) shows the applicant was released from active duty on 15 July 2004.

3.  U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center (WRAMC), Washington, DC, Letter Orders D 06-027, dated 15 February 2005, were sent to the applicant at xx6x Seward Ave, Apt 8B, Bronx, NY, for attachment to W.L. Keller Army Community Hospital (ACH), West Point, NY, effective June 2005 for the purpose of a periodic physical examination.
4.  USAPDA Letter Orders D 09-199, dated 1 May 2007, were sent to the applicant at xx6x Seward Ave, Apt 8B, for attachment to W.L. Keller ACH, effective September 2007, for a periodic physical examination.

5.  USAPDA Letter Orders D 04-216, dated 28 February 2008, were sent to the applicant at xx4x Seward Ave, Apt 8B, for attachment to W.L. Keller ACH, effective April 2008, for a periodic physical examination.

6.  USAPDA Letter Orders D 01-242, dated 10 October 2008, were sent to the applicant at xx4x Seward Ave, Apt 10K, for attachment to W.L. Keller ACH, effective January 2009, for a periodic physical examination.

7.  Two USAPDA letters, dated 3 September 2009 and 10 September 2009, were sent to both addresses the USAPDA had on file for the applicant.  USAPDA notified the applicant his tenure on the TDRL expired on 17 July 2009 and records at USAPDA indicated that he had never undergone a periodic medical examination while on the TDRL.  USAPDA provided a point of contact for the applicant to receive assistance in scheduling a final physical examination.  USAPDA stated if the applicant did not contact them within 10 days of receipt of the letter, he would be administratively removed from the TDRL and he would lose any eligibility for future disability benefits from the Army.

8.  On 24 September 2009, USAPDA notified the Defense Finance and Accounting Service (DFAS) the applicant's tenure on the TDRL had expired on 17 July 2009 and he had been administratively removed from the TDRL.

9.  U.S. Army Physical Education Board, WRAMC, Orders D267-10, dated 24 September 2009, removed the applicant from the TDRL, effective 16 July 2009.  The orders state the applicant's removal was based on his failure to complete a physical reexamination and five years maximum tenure on the TDRL in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 7-11b(4) [periodic examination not performed - removal on fifth anniversary] and Department of Defense Instruction 1332-38 (Physical Disability Evaluation), section E3.P6.2.6 [refusal or failure to report for a required periodic physical examination].

10.  Army Regulation 635-40, paragraph 7-11b(4) states 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.  In the case of a Soldier failing to report for examination or to reply to correspondence sent by the appropriate authority, or if the appropriate authority is unable to locate the Soldier, six months before the fifth anniversary of placement on the TDRL, a final attempt will be made to contact the Soldier or proper civil authorities (if Soldier is imprisoned by civil authorities) and arrange a final examination.  If this fails and the Soldier does not undergo a physical examination, the Soldier will be administratively removed from the TDRL on the fifth anniversary of placement on the list without entitlement to any of the benefits provided by Title 10, U.S. Code, section 1210, chapter 61.

11.  Title 10, U.S. Code, section 1210, chapter 61 states a physical examination shall be given at least once every 18 months to each member of the armed forces whose name is on the TDRL to determine whether there has been a change in the disability for which he/she was temporarily retired.  He/she may be required to submit to those examinations while his/her name is carried on that list.  If a member fails to report for an examination under this subsection, after receipt of proper notification, his/her disability retired pay may be terminated.  However, payments to him/her shall be resumed if there was just cause for his/her failure to report.  If payments are so resumed, they may be made retroactive for not more than one year.

12.  If his/her name is not sooner removed, the disability retired pay of a member whose name is on the TDRL terminates upon the expiration of five years after the date when his/her name was placed on that list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be placed back on the TDRL.

2.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  The applicant was put on the TDRL on 16 July 2004.  Therefore, the date of his removal from the TDRL was 5 years from the date he was placed on the TDRL.

4.  The applicant was ordered on four occasions, between from 15 February 2005 and 10 October 2008, to report for a periodic physical examination.  The orders issued on 10 October 2008 for him to report for a physical examination was 9 months prior to his fifth anniversary of placement on the TDRL.  He was then notified on 3 and 10 September 2009 for a final time to contact USAPDA for a final examination.  He failed to comply with any of the correspondence sent.  As a result, having reached the maximum time allowable by law, he was removed from the TDRL.
5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, there is no basis for placing him back 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 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)                                         AR20090020148



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ABCMR Record of Proceedings (cont)                                         AR20090020148



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