IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20100030068 


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, that he be given his final medical assessment, final pay, and discharge from the Temporary Disability Retired List (TDRL) so that he can either retire, be discharged, or come back into the service.   

2.  The applicant states he was removed from the TDRL because the Army could not find him.  At the time, he was serving overseas as a civilian.  However, he needs his final check up so that he can either be totally separated from the service or be reinstated.

3.  The applicant provides no additional documents with his application.

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 records, though somewhat incomplete, show that he was born on 4 January 1971 and initially enlisted in the Alabama Army National Guard (ALARNG) on 14 March 1989 for a period of 8 years, training as a stock control and accounting specialist, and a cash enlistment bonus.  

3.  He completed his training and served in Southwest Asia during Operation Desert Shield/Storm during the period 12 September 1990 to 21 June 1991.  On 1 March 1994, he was honorably discharged from the ALARNG due to unsatisfactory performance and he was transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve).

4.  On 18 January 1996, he enlisted in the Regular Army (RA) for a period of 
3 years and training as an armor crewman.  He completed his training and was transferred to Fort Hood, Texas.  On 19 March 1998, he reenlisted for a period of 3 years and assignment to Fort Stewart, Georgia.  He again reenlisted on 13 April 2000 for a period of 4 years and assignment to Europe.  He was promoted to pay grade E-5 on 12 October 2000. 

5.  On 10 August 2001, a Medical Evaluation Board (MEB) conducted at the Medical Department Activity in Wuerzburg, Germany diagnosed the applicant as having Vagotomy Syndrome and recommended that he be referred to a Physical Evaluation Board (PEB).  The applicant indicated that he did not desire to continue on active duty and agreed with the MEB's findings and recommendations.

6.  On 3 October 2001, a PEB convened in Washington, D.C. which considered the applicant’s diagnosis of Post Vagotomy Syndrome after Nissen fundoplication.  The PEB found that his condition had not stabilized to the point that a permanent degree of severity could be determined and recommended that he be placed on the TDRL with a 40% disability rating. 

7.  The applicant was advised that it was his responsibility to keep the U.S. Army Physical Disability Agency (USAPDA) informed of his current mailing address and that failure to report for a scheduled examination or notify the USAPDA of his current address would result in the suspension of retired pay.  The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.  Accordingly, the applicant was released from active duty and placed on the TDRL in February 2002 in the rank of sergeant with a 40% disability rating.  His address at that time was in Alexander, Alabama.

8.  On 26 November 2002, the applicant was advised in Letter Orders to report to Martin Army Community Hospital at Fort Benning, Georgia in April 2003 to undergo a periodic physical examination.  However, on 6 February 2003, new Letter Orders were dispatched directing the applicant to report to Dwight D. Eisenhower Medical Center (DDEAMC) at Fort Gordon, Georgia for a periodic medical examination in April 2003.  His address at that time was in Alexander, Alabama.

9.  On 26 January 2004, a PEB was conducted at Fort Sam Houston, Texas which recommended that the applicant be retained on the TDRL with reexamination in February 2005.  The applicant was also advised that it was his responsibility to keep the USAPDA informed of his current address and that it was also his responsibility to report for scheduled periodic examinations.

10.  On 1 October 2004, Letter Orders were dispatched to the applicant (now at a different address in Alabama) directing him to report to DDEAMC at Fort Gordon in February 2005 for a period physical examination.

11.  On 1 September 2005, Letter Orders were dispatched to the applicant (now at a different address in Temple, Texas) advising him to report to Darnall Army Community Hospital at Fort Hood in November 2005 for a periodic physical examination.  The applicant failed to report as ordered for that examination.

12.  On 27 April 2007, orders were published by the USAPDA removing the applicant from the TDRL effective 15 February 2007 without entitlement to severance pay due to his failure to complete a scheduled physical examination and having reached the maximum time allowed by law (5 years) to remain on the TDRL.  The orders were dispatched to yet a different address in Alexander, Alabama along with a memorandum advising the applicant that he would receive no further Army retired payments and informing him to return his identification card.

13.  Title 10, U.S. Code, section 1210, chapter 61 provides that the maximum tenure for placement on the TDRL is limited to 5 years. 

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that that if a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses a medical examination an effort will be made to discover the reason.  If such action cannot be justified and the fifth anniversary of placement on the TDRL has not been reached retired pay will be suspended.  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.  Soldiers 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, chapter 61.  
15.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  Paragraph 2-1 provides, in pertinent part, that a DD Form 214 will not be issued when a Soldier is removed from the TDRL.  The orders removing the individual concerned from the TDRL serve as the final separation document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should receive a final evaluation of his medical condition and removal from the TDRL with either separation or retirement and that he should receive his final pay has been noted and found to lack merit.

2.  The applicant was placed on the TDRL in February 2002 and advised that it was his responsibility to keep the USAPDA informed of his current address and that failure to report for scheduled physical examinations could result in the termination of retired pay.

3.  It is apparent that the applicant understood his responsibilities based on the numerous times he changed addresses and the fact that USAPDA notifications made it to him because he showed up for his periodic examinations.

4.  However, by the applicant’s own admission, he accepted employment overseas and the USAPDA was unable to locate him for his final scheduled medical examination.  Accordingly, the USAPDA removed him from the TDRL in 2007 when he had served the maximum time allowed by law on the TDRL.

5.  The applicant now comes to the Board over 3 years after being removed from the TDRL seeking “final action” on his case.  However, final action was taken on his case when the USAPDA removed him from the TDRL due to his failure to complete a scheduled physical examination and having reached the maximum time allowed by law on the TDRL.  This action in effect discharged him from the Army.

6.  The evidence of record shows he was properly removed from the TDRL without severance or retired pay in accordance with the applicable laws and regulations in effect at the time with no violations of any of the applicant’s rights.

7.  The applicant offers no reasonable explanation of his failure to keep the USAPDA notified of his whereabouts during the period in question or his failure to apply to this Board within the 3-year statute of limitations.  Therefore, absent sufficient justification for his actions and given that the evidence shows he was properly removed from the TDRL, there appears to be no basis to grant 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)                                         AR20100030068



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ABCMR Record of Proceedings (cont)                                         AR20100030068



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