IN THE CASE OF:
BOARD DATE: 8 March 2011
DOCKET NUMBER: AR20100019979
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 change of his current status of permanently retired by reason of disability to reenlistment eligible.
2. The applicant states he was never re-evaluated to see if he was fit for duty after being placed on the Temporary Disability Retired List (TDRL).
3. The applicant provides:
* an email from him to a person named John
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 November 2008
* correspondence between his Congressional representative and the Army Review Boards Agency
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 14 September 2005. He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).
2. He served in Iraq from 1 September 2006 to 31 October 2007.
3. On 14 October 2008, an informal Physical Evaluation Board (PEB) found him unfit for duty for an anxiety disorder, not otherwise specified, requiring psychotropic medication and outpatient treatment. His anxiety symptoms were related to combat stressors. He had problems with proper communication due to anxiety.
4. The PEB recommended a combined 50 percent (%) disability rating percentage and placement on the TDRL with a re-examination during July 2009. The PEB also found that the applicant's disability was based on an injury or disease received in the line of duty as a direct result of armed conflict, caused by an instrumentality of war, or incurred during a period of war as defined by law.
5. On 16 October 2008, he concurred with the findings and recommendation of the PEB.
6. On 4 November 2008, he was retired by reason of temporary disability and placed on the TDRL, effective 5 November 2008, with a disability rating of 50%.
7. The results of any examinations he received while on the TDRL are not available for review.
8. While on the TDRL, on 13 November 2009, an informal PEB found him unfit for duty for an anxiety disorder. The PEB stated his continued symptoms interfere with his ability to be exposed to increased stress as the symptoms might very well be increased with re-exposure. Based on a review of the TDRL examination, the PEB found that he remains unfit to reasonably perform the duties required by his previous grade and MOS.
9. The PEB recommended a combined disability rating of 30% and permanent retirement by reason of disability. On 17 November 2009, the applicant concurred with the findings and recommendation of the PEB.
10. On 19 November 2009, by Orders D323-10, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, he was removed from the TDRL and placed on the Retired List by reason of permanent disability with a disability rating of 30%.
11. In the processing of this case, on 23 December 2010, an advisory opinion was obtained from the USAPDA. The advisory official stated the applicant was
provided his TDRL medical reevaluation results on 11 August 2009. On
27 September 2009, he acknowledged receiving the results and non-concurred, requesting to be cleared for reenlistment in the U.S. Army in an MOS other than his previous infantry MOS. The medical report was finalized and forwarded to a PEB on 19 October 2009.
12. The advisory official also stated the applicant now appears confused regarding his TDRL disability reevaluation processing. However, he was properly and fully evaluated for fitness for duty by the PEB and it was found that he retained residuals of his anxiety disorder that would make it difficult for him to return to a stressful combat environment.
13. On 30 December 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
14. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.
DISCUSSION AND CONCLUSIONS:
1. The advisory official stated the applicant was reevaluated on 11 August 2009 and the applicant non-concurred with the reevaluation. The medical report was finalized and it was forwarded to the PEB that convened on 13 November 2009.
2. The PEB found the applicant unfit for duty and that his continued symptoms interfered with his ability to be exposed to increased stress as the symptoms might very well be increased with re-exposure. The PEB recommended a 30% disability rating percentage and that the applicant be permanently retired by reason of disability.
3. The applicant was properly and equitably processed through the Physical Disability Evaluation System with no indication of any procedural or other errors that would tend to jeopardize his rights.
4. In view of the foregoing, there is no basis for granting the applicant's 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) AR20100019979
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