IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110015648 


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 correction of his records to show he was removed from the temporary disability retired list (TDRL) and permanently retired.  

2.  The applicant states his medical condition still existed when he was removed from the TDRL.  His condition has since worsened and he now requires lifelong treatment.  He also states, in effect:

* The doctor he had in 2001 (Dr. C) was very good; however, the doctor that examined him in 2008 (Dr. E) did not evaluate him properly 
* Dr. E was aware of his 2001 diagnosis; therefore, she should have given him a biopsy in 2008
* His current medical condition is consistent with his diagnosis in 2001, his illness has worsened, and his retirement was taken away from him

3.  The applicant provides volumes of civilian and military service records including all his medical evaluation board (MEB) proceedings, physical evaluation board (PEB) proceedings, and allied documents.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded to a medical retirement.  

2.  Counsel requests that all appropriate developments to include any Department of Veterans Affairs (VA) examination(s) be completed as soon as possible.  

3.  Counsel provides the applicant's VA documents.

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 enlisted in the Regular Army (RA) on 4 September 1996 and held military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  He served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and attained the rank/grade of staff sergeant (SSG)/E-6.

3.  The applicant's narrative summary shows he was initially diagnosed with idiopathic thrombocytopenic purpura (ITP) in July 2001.  He was unresponsive to standard 1V1g and steroids.  He underwent a bone marrow biopsy in August 2002 that showed mild aplasia.  He underwent a trial treatment with Danazol from October to December 2002 without a significant effect on his peripheral blood count.    

4.  He had an MEB in 2002 that referred him to a PEB.  On 22 May 2003, a PEB convened at Fort Sam Houston, TX.  Based on a review of the objective medical evidence of record and considering the physical requirements for reasonable performance of duties required of his grade and military specialty, the PEB found the applicant fit for duty within the limitations of his physical profile.  The PEB noted that he continued to carry out his assigned duties despite his medical condition.  He concurred with the PEB's findings and recommendation.

5.  On 1 November 2005, he underwent a physical examination and he was diagnosed with aplastic anemia (a condition where the bone marrow does not produce sufficient new cells to replenish blood cells).  His narrative summary shows he had a low platelet count and eventually he had a falling white blood cell count, falling hemoglobin, and hermatocrit (the percentage of the concentration of red blood cells in the blood).  He underwent therapy in 2002; but this did not help and his counts continued to fall.  He was aware that there was no recommendation for him to undergo bone marrow transplantation at the time and he was also aware that his disease may worsen in the future at which time he may require a bone marrow transplant.  His condition was determined to have failed retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and he was ultimately referred to the physical disability evaluation system.

6.  On 21 November 2005, an MEB convened at Fort Gordon, GA, 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 aplastic anemia.  The MEB recommended his referral to a PEB.  He did not agree with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.  His appeal was considered but the original findings and recommendation were affirmed.  

7.  On 8 February 2006, an informal PEB convened at Fort Sam Houston, TX.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to aplastic anemia, without transfusion or documented infection.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and granted a 70 percent (%) disability rating.  The PEB recommended the applicant's placement on the TDRL with reexamination in September 2007.  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing on the same date.

8.  On 22 February 2006, Headquarters, Fort McPherson, GA, published official orders retiring him effective 14 May 2006 by reason of temporary disability and placing him on the TDRL effective 15 May 2006.

9.  On 14 May 2006, he was retired and placed on the TDRL on 15 May 2006.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 9 years, 
8 months, and 11 days of creditable active service.

10.  On 14 December 2007, subsequent to a TDRL examination, an informal TDRL PEB convened at Fort Sam Houston, TX.  Based on the review of the TDRL examination, the PEB found he remained unfit to reasonably perform the duties required of his previous grade and military specialty.  However, his current condition was considered sufficiently stable for final adjudication.  He was rated under the VASRD and granted a 10% disability rating.  The PEB recommended separation with entitlement to severance pay.  The applicant did not concur with the PEB's findings and recommendation and demanded a formal hearing with a personal appearance.

11.  On 20 February 2008, a formal PEB convened at Fort Sam Houston, TX.  Based on the review of the TDRL examination, the PEB found the applicant fit for duty and noted that:

* There are presently no restrictions which would preclude the applicant from returning to military service and no prohibitions against normal physical activities expected for reasonable performance
* Soldier is fit; his aplastic anemia has improved since placement on the TDRL
* The primary reason he was found unfit was because of his low platelet count
* He has not been seeing a hematologist even though he continued to have his blood work drawn to the point where his latest platelet count is 154,000
* He states he is able to perform all of the functions required of a 63B and a Soldier
* He states he has not been sick at all
* Although his condition may worsen, at this point in time the formal PEB feels he is fit to return to active duty
* The applicant concurred

12.  On 21 March 2008, the U.S. Army Physical Disability Agency (USAPDA) published Orders D081-08 confirming the applicant had been found fit for duty and removed him from the TDRL effective 21 April 2008. 

13.  There is no indication he executed an enlistment, extension, or reenlistment within 90 days of this finding.

14.  He submitted volumes of medical records to include his service medical records, VA medical records, and multiple civilian reports, and medical documents.

15.  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 RA 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 RA 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 RA 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 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 suffered from aplastic anemia that rendered him unable to reasonably perform the requirements of his grade and military specialty.  Accordingly, he was referred to the PDES.  His records were considered by an MEB that referred him to a PEB.  The PEB rated him at 70% disabled and recommended his placement on the TDRL by reason of temporary disability with a tentative reexamination date.

2.  He underwent a TDRL reexamination that led to a TDRL PEB.  Based on the review of the TDRL examination, the PEB found he remained unfit to reasonably perform the duties required of his previous grade and military specialty.  However, his current condition was considered sufficiently stable for final adjudication.  He was rated under the VASRD and granted a 10% disability rating.  The PEB recommended separation with entitlement to severance pay.  He did not concur and demanded a formal hearing with a personal appearance.


3.  In February 2008, a formal PEB convened at Fort Sam Houston, TX.  Based on the review of the TDRL examination, the PEB found him fit for duty and noted that there were no restrictions which precluded the applicant from returning to military service and no prohibitions against normal physical activities expected for reasonable performance.  His aplastic anemia had improved since placement on the TDRL.  He stated that he was able to perform all the functions required of a 63B and a Soldier and that he had not been sick at all.  The PEB also noted that although his condition may worsen, the formal PEB felt he was fit to return to active duty.  The applicant concurred.

4.  By regulation, if a Soldier is determined to be physically fit to perform the duties of their office, grade, rank or rating (and is otherwise administratively qualified), former RA enlisted Soldiers, subject to their consent, will be reenlisted in their regular component in the grade held on the day before the date placed 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. 

5.  Despite the finding of fit for duty and removal from the TDRL, there is no evidence the applicant exercised the option to return to active duty in the form of an extension or reenlistment.  Contrary to his contention that he was robbed of his retirement, the PEB did not recommend his retirement.  

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20110015648



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ABCMR Record of Proceedings (cont)                                         AR20110015648



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