IN THE CASE OF:	  

		BOARD DATE:	    18 April 2012

		DOCKET NUMBER:  AR20110019034 


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, reinstatement on the Temporary Disability Retired List (TDRL). 

2.  The applicant states:

	a.  That his Combat-Related Special Compensation (CRSC) was revoked when his assigned Physical Evaluation Board Liaison Officer (PEBLO) forwarded his DD Form 199 (Physical Evaluation Board (PEB) Proceedings) to the medical board with a 20-percent (%) rating without his knowledge or approval.  This action destroyed 3 years of work toward CRSC.   

	b.  His right to appear before the board was revoked.  This action also removed him from the TDRL and stopped his Army retired payments.  He is 100% assured that he qualifies for CRSC.

   c.  He requested his TDRL orders be revoked with his placement back on the TDRL so he could complete his CRSC request.  His PEBLO erroneously signed him out of the CRSC program since she had not heard from him in several days. His disabilities prevent his employment.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 
orders removing him from the TDRL
* CRSC Application and letter from the CRSC Branch

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states that given the fact the applicant has been fully separated from the Army, she and the applicant do not believe they have the authority to revoke those orders and put the applicant back on the TDRL.  This requires a finding by the Army Board for Correction of Military Records (ABCMR) that a records correction is appropriate in this case.  Therefore, they believe the applicant’s only recourse is to request relief from the ABCMR.

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 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 record shows he enlisted in the Army National Guard on 19 June 1991.  He served in military occupational specialty 68W (Health Care Specialist).  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 18 September 2005.  He served in Kuwait/Iraq from 22 March 2006 through 7 July 2007.

3.  On 5 September 2008, an MEB referred him to a PEB for chronic neck pain, migraine headaches, carpal tunnel syndrome, and hearing loss.

4.  On 23 October 2008, an informal PEB considered his disabilities of chronic neck pain, a traumatic onset while deployed to Iraq in June 2007 and carpal tunnel syndrome.  The PEB determined that his functional limitation in maintaining appropriate levels of stamina, caused by physical impairments, made him medically unfit to perform the duties required of a his rank and primary specialty.  The PEB determined the other conditions, migraine headaches and hearing loss, listed on the medical board diagnosis met retention standards and 

found those conditions to be not unfitting and therefore not ratable.  His unfitting impairments were rated at a disability level of 30%, but were such that a permanent evaluation was not yet possible and therefore recommended placing him on the TDRL.

5.  The available record is void of the applicant's concurrence or nonconcurrence with the 2008 PEB's findings and recommendations.  His records contain a DD Form 214 which shows he was honorably retired from active duty for disability and placed on the TDRL on 19 January 2009.

6.  On 22 May 2011, he acknowledged that had been informed of the approved findings and recommendations of his TDRL Physical Examination and agreed.

7.  On a letter, dated 1 June 2011, the CRSC Branch advised him of an approved award of a 40% total combat-related disability for adjustment disorders with mixed anxiety and depression, bilateral hearing loss, and tinnitus.  The letter advised that they were unable to verify the cervical spine degenerative disc disease and migraine headaches as combat-related disabilities.

8.  On 8 July 2011, a formal PEB convened.  The PEB found his conditions had not improved to the extent that he was now fit.  Upon reevaluation it was noted that his disability rating was less than 30%.  The PEB recommended he be separated with a combined rating of 20% with entitlement to severance pay.

9.  In a memorandum, dated 26 July 2011, a staff member of the U.S. Army Physical Disability Agency (USAPDA) stated that a copy of the PEB proceedings had been forwarded to the applicant through the PEBLO.  The PEBLO affirmed that the applicant was properly advised of the findings and recommendation of the PEB, but had not responded.  In accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-20e, the applicant was considered to have accepted the findings and recommendations of the informal PEB.

10.  Orders 0210-07, dated 29 July 2011, were issued by the USAPDA removing him from the TDRL with a 20% disability rating with entitlement to severance pay.

11.  Army Regulation 635-40 sets forth the basic authority for the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay 

benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

12.  Army Regulation 635-40, paragraph 4-20e, states that upon receipt of the Soldier’s completed DA Form 199 from the PEBLO, the PEB will take the following actions, as applicable:

	a.  If the Soldier accepts the findings and recommendations of the informal PEB, the recorder will assemble the records. The proceedings will be approved for the Secretary of the Army (SA) and forwarded to U.S. Army Human Resources Command (USAHRC) for final disposition.

	b.  If the Soldier nonconcurs with the findings without submitting a rebuttal, the PEB will approve the proceedings for the SA and forward the case to USAHRC for final disposition.

	c.  If the Soldier fails or declines to make an election within the prescribed time and the PEB has not received from the PEBLO, the PEB will contact the PEBLO to confirm the status of the Soldier’s election.  When the PEBLO confirms the Soldier has been informed of the findings and recommendations but has not made an election, the PEB will proceed as if the Soldier has accepted the findings and recommendations.

	d.  The proceedings will be forwarded to USAHRC for final disposition. The forwarding memorandum will document the circumstances resulting in the waiver of election.  The PEB will forward a copy of the memorandum to the Soldier through the PEBLO.

13.  Army Regulation 635-40 also states:

   a.  Paragraph 7-1, a Soldier’s name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, U.S. Code, section1201, but for the fact that his/her disability is determined not to be of a permanent nature and stable.  

	b.  Paragraph 7–7, that for prompt removal from TDRLs medical examiners and adjudicative bodies will carefully evaluate each case.  They 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, United States Code, section 1210.

	c.  Paragraph 7-12, the USAPDA may restore the Soldier’s eligibility to receive disability retirement pay if, after failure to report for and complete the required periodic examination, the Soldier later satisfactorily meets the examination requirements.  The Soldier’s eligibility to receive retired pay may be
made retroactive, not to exceed 1 year, if the Soldier can show just cause for failure to respond to official notice or orders.  A Soldier’s name may have been removed from the list as provided in paragraph 7–11(b(4) (periodic examination not performed).  If so, the Soldier may take application to the ABCMR.

	d.  Paragraph 7-20, if the PEB recommends removal from the TDRL, the PEB will forward to the Soldier the DA Form 199 and a letter of explanation by certified mail, restricted delivery, return receipt requested.  The letter will inform the Soldier of his/her rights and responsibilities.  It will provide the name, location, and telephone number of the PEBLO.  The Soldier will sign the original copy of the DA Form 199 and return it after giving his/her choice of options.  The copy of the DA Form 199 is the Soldier’s copy. 

		(1)  If the certified mail receipt is not returned, or if the correspondence is returned undelivered, the PEB will try to verify the Soldier's address.  If new address is obtained, the PEB will try to deliver the notice.  If not, a memorandum waiving the Soldier's right of election will be prepared.

		(2)  If the receipt is returned but no election is received, the PEB president will prepare a memorandum waiving the Soldier’s right of election for failure to respond.  The certified mail receipt will be included in the case file as proof that the Soldier was notified. 

		(3)  The PEB president will forward the case file to USAPDA for final disposition.

	e.  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 the Soldier meets the criteria below, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay:

* the Soldier is unfit
* the disability causing the Soldier’s name to be placed on the TDRL has become permanent
* the disability causing for which the Soldier was placed on the TDRL has stabilized or improved so as to be rated at less than 30 percent

14.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the Department of Veterans Affairs (VA) for combat-related disabilities if it was not for the statutory prohibition for a military retiree to receive a VA disability pension.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

15.  The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  In that guidance it was stated that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant underwent an informal PEB for chronic neck pain and carpal tunnel syndrome.  He was found physically unfit and the PEB concluded a permanent degree of severity of his impairments was not possible at the time and recommended placement on the TDRL, with a 30% combined rating.  It appears, he concurred and he was honorably retired and placed on the TDRL on 19 January 2009.

2.  On 1 June 2011, the CRSC Branch awarded him a 40% total combat-related disability for adjustment disorders with mixed anxiety and depression, bilateral hearing loss, and tinnitus.  They were unable to verify the cervical spine degenerative disc disease and migraine headaches as combat-related disabilities.

3.  The evidence also shows that on 8 July 2011 he underwent a formal PEB.  It was determined that his condition had not improved to the extent that he was fit for duty.  The PEB recommended his separation with a 20% disability rating with entitlement to severance pay. 

4.  In July 2011, a PEBLO affirmed that that applicant was properly advised of the findings and recommendation of the informal PEB, but had not responded.  In accordance with Army Regulation 635-40, the applicant was considered to have accepted the findings and recommendations of the informal PEB.  Orders were 

issued on 29 July 2011 removing him from the TRDL with a 20% disability rating with entitlement to severance pay.

5.  On 8 November 2011, he requested his TDRL orders be revoked with his placement back on the TDRL so he could complete his CRSC request.  He stated that he was erroneously signed out of the CRSC program since his PEBLO had not heard from him in several days.  

6.  The applicant's and counsel's contentions have been considered; however, they do not demonstrate error or injustice in his removal from the TDRL in 2011.  A PEB determined in 2011 that his disability, for which he had been placed on the TDRL, had not improved to the extent he was fit for duty, and recommended his separation at less than 30%.  

7.  The applicant and counsel have failed to provide a reasonably just cause for failure to respond to the findings and recommendations of the 2011 PEB.  Without evidence to the contrary, it appears his removal from the TDRL was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.  

8.  The CRSC criteria are specifically for those military retirees who have combat-related disabilities.  The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.  The award of a CRSC rating or qualifying for CRSC does not establish entitlement for an individual's reinstatement on the TDRL subsequently to their proper removal.

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)                                         AR20110019034



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ABCMR Record of Proceedings (cont)                                         AR20110019034


   
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