IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120008380 


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, correction of her records to show she was removed from the Temporary Disability Retired List (TDRL) with severance pay. 

2.  The applicant states she was temporarily medically retired from the Army in 1985 due to disability.  She was later taken off the TDRL and not paid severance pay or given the chance to go back in the service.  

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 show she enlisted in the Regular Army (RA) on 1 August 1985.  She was assigned to the 9th Battalion, 2nd Basic Training Brigade, Fort Jackson, SC, for basic combat training.  On 30 September 1985, she was assigned in a patient status to the Medical Holding Company, Fort Jackson, SC.

3.  On an unknown date, a medical evaluation board (MEB) convened and diagnosed her with the unfitting condition of stress fractures to her lower extremity requiring external aids.  The MEB recommended her referral to a physical evaluation board (PEB).

4.  On 8 October 1985, an informal PEB convened at Fort Gordon, GA, and confirmed her unfitting disability of stress fractures to the lower extremity.  The PEB found the applicant's condition caused her to be physically unfit to continue her initial training due to the requirement to use external aids for ambulation during the healing process.  She was rated under the Veterans Administration Schedule for Rating Disabilities (VASRD) codes 5299 and 7116 and assigned a 40-percent disability rating.  The PEB recommended her retirement and placement on the TDRL with a reexamination during 1986.

5.  The DD Form 214 she was issued shows she was honorably retired from active duty on 2 December 1985 in the rank of private/E-1 by reason of physical disability - temporary.  She completed 4 months and 2 days of net active service.

6.  On 25 November 1986, a TDRL evaluation was conducted and found her stress fractures of the right foot were completely healed, determined her condition was stable, and she was fit for duty.

7.  On 15 December 1986, an informal PEB convened at Fort Gordon, GA, and found her current evaluation stated her condition was stable and she was fit for military duty.  The PEB found her physically fit for continued military service or separation.  On 26 December 1986, after being counseled on her rights, she concurred with the board's findings and waived her right to a formal hearing.

8.  Orders Number D20-62, dated 28 January 1987, issued by the U.S. Army Military Personnel Center, Alexandria, VA, stated she had been found fit for duty and was removed from the TDRL effective 11 February 1987.  These orders show her address at the time was Cedartown, GA.

9.  Her records contain a memorandum, dated 28 January 1987, to the Commander, U.S. Army 2nd Recruiting Brigade, Fort Gillem, GA, from the U.S. Army Military Personnel Center, Alexandria, VA, wherein it stated the applicant was removed from the TDRL.  On the effective date of removal, she would be afforded the opportunity to reenlist in the RA.  If reenlistment was declined, she would be placed in the appropriate Reserve category until the completion of her Reserve obligation.  The completed election form was required to be forwarded to the U.S. Army Military Personnel Center not later than 11 March 1987.

10.  Her record is void of a completed election form that shows the applicant declined to reenlist in the RA.

11.  On 11 February 1987, she was removed from the TDRL and her retired pay was terminated.

12.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

13.  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 rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 U.S. Army Physical Disability Agency (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.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 15 December 1986 a PEB found the applicant was fit for continued military service or separation.  The applicant herself concurred with the board's findings and she was appropriately removed from the TDRL, on 11 February 1987, and her retirement pay was terminated.

2.  She was found fit for military service and not entitled to severance pay, but she was entitled to reenlist in the RA.  In the absence of evidence to the contrary, it is presumed what the Army did in her case was appropriate.  She was informed of her election options and she chose not to reenlist in the RA.  There is no evidence in her records and she has not provided any evidence that shows she elected to reenlist in the RA and was denied this option.

3.  In view of the foregoing, she is not entitled to 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)                                         AR20120008380



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ABCMR Record of Proceedings (cont)                                         AR20120008380



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