IN THE CASE OF:	

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20090020905 


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 reinstatement of his disability retirement.

2.  The applicant states he believed his disability retirement was permanent based on a 30-percent disability rating.  He claims he was told he was on the Temporary Disability Retired List (TDRL) until his review was over and that based on his herniated abdomen, he would not be called back into service.  He claims he was told he would automatically be placed on permanent disability retirement once his TDRL review was over.  He moved from Maryland to Mississippi in January 2006.  He needs to schedule another physical examination so he can get his retirement reinstated.  He claims he is still disabled due to a herniated abdomen which prevents him from getting a job and he needs to reschedule his TDRL physical in Mississippi.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 13 May 1993.  He served for 10 years, 4 months, and 10 days until being retired on 22 September 2003 in the rank of sergeant/E-5 by reason of temporary disability.  On 23 September 2003, the applicant was placed on the TDRL with a 30-percent disability rating.

2.  On 23 September 2008, the applicant was administratively removed from the TDRL by law without entitlement to severance pay based on his failure to complete a scheduled physical reexamination.

3.  During the processing of this case an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  It states the applicant was placed on the TDRL on 23 September 2003 and the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) clearly informed the applicant of the requirement to keep the USAPDA informed of his current address, that he was required to participate in periodic TDRL reevaluations, and that failure to comply would result in removal from the TDRL and suspension of retired pay.

4.  The USAPDA advisory opinion further indicates the applicant was notified at his address in Silver Spring, Maryland, of a required TDRL reevaluation in 2004.  He received the notification and complied, which resulted in his being continued on the TDRL.  In 2007, the applicant was notified of a TDRL reevaluation at his address in Laurel, Mississippi, which is the address listed on his application to this Board.  Both the USAPDA and the medical treatment facility sent him reevaluation notices.  The medical treatment facility returned the reevaluation packet to the USAPDA in June 2007, indicating the applicant refused to comply with the reevaluation requirement.  The applicant was sent another letter to the same address on 1 August 2007 informing him his failure to comply and warning him of possible removal from the TDRL.  On 4 October 2007, another warning letter was mailed to the applicant at the same address indicating that unless he responded and complied with the reevaluation requirements, his retirement status would be terminated.  The applicant did not respond.

5.  The opinion further states that on 2 July 2008 the USAPDA sent the applicant letters to both the Laurel, Mississippi, and Silver Spring, Maryland, addresses again informing him that his 5-year tenure on the TDRL was almost set to expire and if he did not comply with the TDRL reevaluation, his TDRL status would terminate and he would no longer be eligible for retired pay or benefits.  The applicant did not respond and orders removing the applicant from the TDRL based on his noncompliance and the 5-year expiration were sent to the Laurel, Mississippi, address on 29 September 2008.  The applicant also did not respond to this notification.  It further states the applicant indicated in his application to the Board that he discovered the error regarding his removal from the TDRL on 30 November 2009.  It is unclear why that date was chosen as the applicant was properly notified numerous times before that date and his retired pay and all retirement benefits were terminated in September 2008.  The applicant failed to comply with the law regarding his TDRL reevaluations and he was properly removed from the TDRL as required.

6.  The USAPDA opinion also states the applicant cited no errors regarding his removal from the TDRL and simply claims he never received any of the letters.  The applicant now requests reevaluation so he can be compensated for his herniated abdomen which he claims causes him to be unable to work.  However, he was not placed on the TDRL for this condition and it would not be compensable upon removal from the TDRL even if he were provided a reevaluation.

7.  The USAPDA finally opines that the applicant failed to provide evidence of an error or injustice regarding his removal from the TDRL without benefits and recommends no change to the applicant's military record.

8.  On 1 June 2010, the applicant was provided a copy of the USAPDA advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, he has failed to reply.

9.  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 7-11 contains guidance on the disposition of the TDRL Soldier.  It states that when a Soldier fails to report or comply with a periodic examination requirement prior to the fifth anniversary of placement on the TDRL, his/her retired pay will be suspended and he/she will be administratively removed from the TDRL on the fifth anniversary of placement on the TDRL without entitlement to any benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be reevaluated and permanently retired by reason of disability has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  By law and regulation, a member on the TDRL who fails to comply with reevaluation requirements will have his or her retired pay suspended and will be removed from the TDRL without retirement or benefits on the fifth anniversary of his or her placement on the TDRL.

3.  The evidence of record confirms the applicant failed to comply with TDRL reevaluation requirements and he was properly removed from the TDRL without retired pay and benefits on the fifth anniversary of his placement on the TDRL as is required by the governing law and regulation.

4.  Further, the USAPA advisory opinion confirms the applicant's abdomen condition was not determined to be unfitting by the PEB when the applicant was placed on the TDRL.  As a result, even if the applicant were reevaluated, this condition would not be compensable.  Therefore, absent any evidence of error or injustice related to his removal from the TDRL, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20090020905



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ABCMR Record of Proceedings (cont)                                         AR20090020905



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