IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014765 


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, correction of his records to show he was removed from the Temporary Disability Retired List (TDRL) and issued a permanent disability retirement. 

2.  He states he still has the physical impairment for which he was placed on the TDRL.  He is currently receiving a Department of Veterans Affairs (VA) service-connected compensation, rated at 70 percent, for the condition.  He followed all required procedures while on the TDRL, but he was suddenly dropped and he was never placed in a permanent disability status.  

3.  He also states, in effect, he was to be reexamined in 1993 and was scheduled to report to the Balboa Naval Hospital in San Diego, CA.  However, he was unable to get to San Diego because he resided in Long Beach, approximately 2 hours north of San Diego.  But he was able to get to the Long Beach Naval Hospital, which was within a mile of his home.  Balboa Naval Hospital requested that the Long Beach Hospital perform the examination and forward the results to them.  He completed the examination and he has been living his life thinking he was placed in a permanent disability status.  However, in April 2010 he discovered he had actually been dropped from the TDRL as having not followed through on his examination.  He states he continues to suffer from the disability and he believes he should be placed in a permanent disability status with access to all of the benefits afforded military disability retired personnel.



4.  He provides no additional evidence.

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’s military records show he enlisted in the Regular Army on 6 October 1982 and held military occupational specialty (MOS) 76Y (Unit Supply Sergeant). 

3.  On 16 December 1991, an informal Physical Evaluation Board (PEB) convened and concluded the review of the applicant's records provided insufficient evidence the physical impairments (Bilateral hearing loss of undetermined etiology) either singly or in combination, precluded the applicant from satisfactorily performing his duty.  Accordingly, he was found fit for duty.  The board noted the applicant currently served in a non-combat MOS in a non-tactical unit and that the evaluations of 7 August 1990 and 7 March 1991 indicated that with hearing aids the applicant's hearing was within the functional range needed to perform the duties of a Soldier who requested, received, inspected, stored, issued, delivered, turned in, accounted for, and preserved supplies in the unit and supervised small unit supply operations.  

4.  On 18 December 1991, he stated he did not concur with the findings and recommendation of the PEB and requested a formal hearing.

5.  On 26 February 1992, a formal PEB convened.  The PEB found his functional limitations in maintaining hearing acuity made him unfit to perform the duties required of his MOS.  The board concluded his physical impairments, brought about by hearing problems which were apparently progressing and of an undetermined origin, were of such a nature that evaluation of a permanent degree of severity was not possible at the time.  The PEB advised that failure to report for a scheduled examination or to notify the Total Army Personnel Command (PERSCOM) of a 

change in address could result in the suspension of retired pay.  The PEB recommended placement on the TDRL with a 50 percent combined rating and reexamination on 28 February 1993.

6.  On 26 February 1992, he concurred with the findings and recommendations of the PEB.

7.  On 13 April 1992, the applicant was retired and placed on the TDRL with a
50 percent disability rating. 

8.  In a memorandum, dated 8 October 1996, the PEB Liaison Office, U.S. Army Medical Department Activity, Fort Irwin, CA, stated the applicant was seen by the Ear, Nose, and Throat Clinic at the Naval Medical Center, San Diego, on five separate occasions due to inconsistencies of his hearing examinations.  The applicant was scheduled for a final appointment on 9 April 1996 and he failed to show up and instead wrote a letter of protest to the Clinic Chief.  The Clinic Chief explained to the applicant that he must show up for the appointment or he would risk having his pay stopped until he did.  The evaluation was rescheduled for 7 October 1996 and the applicant failed to show.  Attempts to contact him since April had been futile.  Therefore, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) his case was returned without action.  

9.  On 24 October 1996, he was notified in writing by PERSCOM that information had been received that indicated he did not report for his periodic examination during April "95."  He was also advised he was required by law to undergo physical examination(s) as ordered by the Secretary of the Army.  If he did not provide an explanation for his failure to report for the examination, no further effort would be made to reschedule him and his eligibility to receive Army retired pay would be terminated.  

10.  On 19 December 1996, PERSCOM notified the applicant in writing of the termination of eligibility to receive retired pay due to his failure to report for his periodic medical examination.  He was also advised he must request another appointment for an examination and furnish a written explanation of the reason for his failure to report for the previous examination, in order to reinstate and receive retired pay.  If no communication was received by 13 April 1997, the date his tenure on the TDRL expired, his name would be removed from the list without the benefit of a medical examination.



11.  On 7 March 1997, he was notified in writing by the Physical Disability Branch of his upcoming periodic medical examination arranged at Weed Army Community Hospital (ACH), Fort Irwin, CA, during or before April 1997.  He was also advised the examination was required by law even if he waived Army retired pay for VA compensation or received medical treatment from the VA or civilian sources.  He was further advised that failure to report for the examination without showing just cause would result in termination of his eligibility for Army retired pay and a retired member's identification card.

12.  On 2 September 1997, his TDRL case was returned without action due to his failure to make contact with the TDRL Desk at the Naval Medical Center, San Diego, in order to schedule an appointment.  It was noted that attempts to reach him had been unsuccessful as well.  

13.  Orders D183-2 were published by PERSCOM on 18 September 1997 administratively removing him from the TDRL for failure to complete a scheduled physical reexamination with an effective date of 13 April 1997.

14.  Army Regulation 635-40, then in effect, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It specified PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  Paragraph 7-4c stated a Soldier on the TDRL who failed to complete a physical examination when ordered would have their disability retired pay suspended.  

15.  Army Regulation 635-40, paragraph 7-11b(1) stated if a Soldier failed to respond to correspondence concerning the medical examination or failed or refused to complete a medical examination, PERSCOM would make an effort to discover the reason.  If such action could not be justified and the 5th anniversary of placement on the TDRL had not been reached, PERSCOM would notify the Soldier and Retired Pay Operations to suspend retired pay.  PERSCOM would keep the Soldier's names on the TDRL until the 5th anniversary unless it was removed sooner by other action.

16.  Army Regulation, paragraph 7-11b(4) stated that Soldiers on the TDRL should be entitled to permanent retirement if removed on the 5th anniversary unless just cause was shown for failure to complete the examination.  Six months before the 5th anniversary of placement on the TDRL, PERSCOM would make a final attempt to contact the Soldier and arrange a final examination.  If that failed 

and the Soldier did not undergo a physical examination, PERSCOM would administratively remove him/her from the TDRL without entitlement to any of the benefits.

17.  Title 10, U.S. Code, section 1210h, states that if a member is not sooner removed, the disability retired pay of a member on the TDRL terminates upon the expiration of 5 years after the date when their name was on placed on the TDRL.

18.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

19.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant underwent an informal and a formal PEB for bilateral hearing loss.  He was found physically unfit by a formal PEB and he concurred with the findings and recommendations of the PEB.  The PEB concluded a permanent degree of severity of his hearing impairments was not possible at the time and recommended placement on the TDRL, with a 50 percent combined rating, and reexamination on 28 February 1993.  He was honorably retired and placed on the TDRL on 13 April 1992.

2.  The evidence also shows that in October 1996 he was scheduled for a final appointment on 9 April 1996.  He failed to show up, and instead wrote a letter of protest to the Clinic Chief.  The Clinic Chief explained to him that he must show up for the appointment or he would risk having his pay stopped until he did.  The evaluation was rescheduled for 7 October 1996 and he again failed to show.  Attempts to contact him since April had been futile.  In December 1996, he was notified by PERSCOM of the termination of his pay due to his failure to report for his periodic medical examination.  He was also advised he must request another appointment for an examination and furnish a written explanation of the reason 

for his failure to report for the previous examination in order to be reinstated.  If the required documentation was not received by 13 April 1997, the expiration date if his TDRL status, his name would be removed from the list without the benefit of a medical examination.

3.  In March 1997, he was again notified by PERSCOM of his upcoming periodic medical examination which was arranged at Weed ACH, Fort Irwin, during or before April 1997.  He was also advised the examination was required by law, even if he waived Army retired pay for VA compensation or received medical treatment from the VA or civilian sources.  He was further advised that failure to report for the examination without showing just cause would result in termination of his eligibility for Army retired pay and a retired member's identification card.

4.  In September 1997, his TDRL case was returned without action due to his failure to make contact with the TDRL Desk at the Naval Medical Center, San Diego, in order to schedule an appointment.  It was noted that attempts to reach him had been unsuccessful as well.  PERSCOM published orders on 18 September 1997 removing him from the TDRL for failure to complete a schedule physical reexamination with an effective date of 13 April 1997.

5.  His contentions have been considered; however, they do not demonstrate error or injustice in his removal from the TDRL in 1997.  He was advised on several occasions that he was required by law to report for a physical examination, which he failed to do.  He was also notified of his impending scheduled examinations and the results if he failed to complete a scheduled examination.  At that time, he should have realized that something could occur to change his status.

6.  He has failed to provide a reasonably just cause for failure to complete a periodic examination or to show that he should have received retirement due to permanent physical disability in September 1997.  Without evidence to the contrary, it appears his removal from the TDRL was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors, which would have jeopardized his rights.  

7.  The award of a VA rating does not establish entitlement to an Army medical discharge and/or medical retirement.  Operating under its own policies and regulations the VA awards ratings because a medical condition is related to service, i.e., service-connected.  

8.  In view of the foregoing, there is no basis for granting his 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.



      ____________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)                                         AR20100014765



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014765



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1