IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20110003967 


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, through his Member of Congress, reconsideration of his earlier request for correction of his records to show he was placed on the permanent Retired List effective 1 October 2002.

2.  The applicant states that on 19 December 1996 he was permanently disabled due to a car accident.  He had since been treated through the Department of Veterans Affairs (VA) in Phoenix, AZ, and San Diego, CA.  Shortly after marrying his spouse on 17 December 2007, they learned she was pregnant with their first child.  They contacted TRICARE regarding medical enrollment but they were denied.  They learned the issue was that he was never transferred from the temporary disability retired list (TDRL) to the permanent Retired List.  Upon further research, they learned that he was dropped off the Army system as a result of the Army not being able to contact him to place him on the Retired List.  He was confused as to how the Army was unable to contact him when he had been getting paid by the Defense Finance and Accounting Service (DFAS) since 1996 and he had been treated through the VA from the time of the accident and continues to receive treatment.

3.  He also states they petitioned the Army Board for Correction of Military Records (ABCMR) but they were told to contact the U.S. Army Physical Disability Agency (USAPDA).  An official at the USAPDA notified him that his name had been removed from the TDRL because the USAPDA was unable to contact him. He then petitioned the ABCMR but he was denied relief.  He concludes that they have 2 children and they are paying out of pocket costs of healthcare.  

4.  The applicant provides:

* various VA medical documents and rating decision
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* the previous ABCMR Record of Proceedings

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080015708, on 12 March 2009.

2.  The applicant provides a new argument which was not previously reviewed by the ABCMR.  This argument is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army for a period of 2 years and
15 weeks on 26 August 1996.  He completed basic combat and advanced individual training and he was initially awarded military occupational specialty (MOS) 11B (Infantryman).  

4.  His record also shows he was assigned to B Company, 2nd Battalion,
58th Infantry, Fort Benning, GA.  The highest rank/grade he attained was private first class (PFC)/E-3.

5.  Following completion of MOS training, he received assignment instructions to Panama.  However, on 19 December 1996, while on leave, he was involved in a vehicle accident.  His DA Form 2173 (Statement of Medical Examination and Duty Status) shows he was admitted to Maricopa Medical Center, Phoenix.

6.  On 14 July 1997, a medical evaluation board (MEB) convened at Fort Huachuca, AZ, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of paraplegic (wheelchair dependent).  The MEB recommended his referral to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

7.  On 7 August 1997, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to 

complete paralysis of the right lower and left extremity and self-catheterization.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and granted a 100 percent (%) disability rating percentage.  The PEB recommended the applicant's placement on the TDRL with reexamination in July 1998.  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing on the same date.

8.  On 12 September 1997, the U.S. Army Intelligence Center, Fort Huachuca, AZ, published official orders retiring him effective 1 October 1997 by reason of temporary disability and placing him on the TDRL effective 2 October 1997.

9.  His DD Form 214 shows he was honorably retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary physical disability.  It further shows he completed 1 year, 1 month, and 6 days of creditable active service.

10.  On 26 February 2002, by letter addressed to his Tempe, AZ, address, an official at the USAPDA notified him that his eligibility to receive disability retirement pay was terminated on 26 February 2002 under the authority of
Title 10, U.S. Code, section 1210 because of his failure to report for his periodic medical examination.  His entitlement to an identification and privilege card was also terminated.  He was reminded that to reinstate his eligibility, he should request another appointment for an examination and submit a written explanation for his failure to report to the previous examination.

11.  On the same date, USAPDA notified DFAS that the applicant failed to appear for a required periodic medical examination as directed by competent orders and failed to show just cause for such failure to report.  Therefore, his eligibility to receive disability retirement pay is terminated effective 26 February 2002.

12.  On 16 August 2002, by letter, an official at the USAPDA notified the applicant that as a member of the TDRL, he was required to undergo a physical examination as ordered by the Secretary of the Army even if he had waived his Army retired pay in favor of VA compensation.  The records indicated he did not comply and that his eligibility to receive retired pay was terminated.  The letter also informed him that this was the final attempt to contact him in an effort to schedule an examination.  He was again reminded that if he failed to respond, no factual determination as to his entitlement to benefits could be made.

13.  On 23 October 2002, the USAPDA published Orders D206-6 ordering his removal from the TDRL effective 1 October 2002 by reason of failure to complete a scheduled physical reexamination required by law.  Furthermore, on 4 October 2002, by letter, an official at the USAPDA notified the applicant that effective 1 October 2002, by law, he was removed from the TDRL for failing to appear for a scheduled medical examination subsequent to placement on the TDRL.

14.  In February 2008, he visited a National Guard facility in Arizona to enroll his spouse in the Defense Enrollment Eligibility Reporting System (DEERS) to obtain an identification card for her.  He was denied as he was no longer in the Army system.

15.  On 17 September 2008, by email, a USAPDA official stated the applicant's case was finalized by the agency in 2002.  When the applicant could not be contacted, he was removed from the TDRL in accordance with Army Regulation 635-40, chapter 7, and Title 10, U.S. Code, section 1210 for failing to comply and the expiration of the 5-year TDRL period.  His case was considered final.

16.  Army Regulation 635-40 establishes the Army PDES.  Chapter 7 outlines procedures for administration and processing of Soldiers whose names are on the TDRL:

	a.  Paragraph 7-2 provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 

	b.  Paragraph 7-7 states medical examiners and adjudicative bodies will carefully evaluate each case and will recommend removal of the Soldier’s name from the TDRL as soon as the Soldier’s condition permits.  Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, U.S. Code, section 1210.

	c.  Paragraph 7-11 outlines the action following periodic PEB evaluation.  A Soldier will be removed from the TDRL as described below on the fifth anniversary of the date the Soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB.

		(1)  Permanent retirement.  If the Soldier meets the following criteria, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay: (a) the Soldier is unfit; (b) the disability causing the Soldier’s name to be placed on the TDRL has become permanent; and (c) the disability is rated at 30% or more under the VASRD, or the Soldier has at least 20 years of active Federal service.

		(2)  Separation.  A Soldier will be removed from the TDRL and separated with severance pay if the Soldier (a) has less than 20 years of service; (b) is unfit because of the disability for which the Soldier was placed on the TDRL; and either the disability has stabilized at less than 30%; or the disability, although not stabilized, has improved so as to be ratable at less than 30%.  A former Regular Army enlisted Soldier who would be separated under this authority may request a waiver to reenlist.

		(3)  Fit for duty. If a Soldier is determined physically fit to perform the duties of their office, grade, rank or rating (and is otherwise administratively qualified), former Regular Army enlisted Soldiers, subject to their consent, will be reenlisted in their regular component in the grade held on the day before the date place on the TDRL, or in the next higher grade.  If the Soldier does not consent to reenlistment, TDRL status and disability pay will be ended as soon as possible.

		(4)  Unfit, Not in Line of Duty:  A Soldier may recover from the disability resulting in placement on the TDRL.  If while on the TDRL, the Soldier incurs another unfitting disability, the Soldier may be separated without benefits.  If the Regular Army Soldier had completed 20 years or more of active service when placed on the TDRL, the Soldier may request voluntary retirement.

	d.  Paragraph 7-11 states the USAPDA will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier's name was placed on the list, or sooner on the approved recommendation of a PEB.  If a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses to complete a medical examination, the USAPDA will make an effort to discover the reason.  If such action cannot be justified and the fifth anniversary of placement on the TDRL has not been reached, the USAPDA will notify DFAS to suspend retired pay.  USAPDA will keep the Soldier on the TDRL until the fifth anniversary unless he or she is removed sooner by another action.

	e.  Paragraph 7-11a(4) states Soldiers on the TDRL shall be 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.  Six months before the fifth anniversary of placement 

on the TDRL, the USAPDA will make a final attempt to contact the Soldier or proper civil authorities and arrange a final examination.  If this fails, and the Soldier does not undergo a physical examination, the USAPDA will administratively remove the Soldier from the TDRL on the fifth anniversary of placement on the list without entitlement to any of the benefits provided in Title 10, U.S. Code, chapter 61.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was involved in a vehicle accident that rendered him unfit for retention.  His records were considered by an MEB that referred him to a PEB.  The PEB rated him at 100% disabled and recommended his placement on the TDRL by reason of temporary disability with a tentative reexamination date.

2.  He was notified of the requirement to undergo a reexamination to determine his medical condition but he failed to comply.  Without a reexamination, the Army could not determine his medical fitness.  No factual determination as to entitlement to benefits could be made.  After having failed to respond, the USAPDA removed him from the TDRL on the 5th anniversary as required by law and regulation.

3.  Contrary to his contention that he was permanently disabled due to a car accident, the evidence of record shows he was temporarily retired.  Additionally, the responsibility to keep the USAPDA informed of his whereabouts was his and not of DFAS or the VA.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In view of the foregoing evidence, the applicant is not entitled to the requested relief. 

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 to amend the decision of the ABCMR set forth in Docket Number AR20080015708, dated 12 March 2009.



      ___________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)                                         AR20110003967



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ABCMR Record of Proceedings (cont)                                         AR20110003967



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