IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120009461 


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 that he be retired by reason of permanent disability.

2.  The applicant states that during his last 2 years on the Temporary Disability Retired List (TDRL) he was homeless and did not receive his notice to attend a final examination.  He goes on to state that he should be permanently retired because the error prevents him from receiving benefits under TRICARE.   

3.  The applicant provides copies of his military medical records obtained from the Department of Veterans Affairs (VA).

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 was born on 12 March 1969 and enlisted in the Regular Army in Philadelphia, Pennsylvania on 2 March 1995 for a period of 4 years and training as a multichannel transmission systems operator/maintainer.  At the time of enlistment he indicated that his residence and the residence of his wife and child was his parent’s address in Philadelphia, Pennsylvania.

3.  He completed basic training at Fort Jackson, South Carolina and advanced individual training at Fort Gordon, Georgia before being transferred to Korea on 31 August 1995. 

4.  He completed his tour in Korea on 30 August 1996 and was transferred to Fort Huachuca, Arizona, on 15 October 1996.

5.  On 13 November 1997, a Physical Evaluation Board (PEB) convened at Fort Lewis, Washington and determined that the applicant was unfit for duty due to Bipolar I disorder and recommended that he be placed on the TDRL with a 50% disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  On 24 January 1998, he was retired and transferred to the TDRL due to temporary disability on 25 January 1998.  He had served 2 years, 10 months, and 23 days of active service.  The applicant provided his parent’s address as the address at which he could be contacted.

7.  The applicant underwent a reexamination in February 1999 and was retained with reexamination due in August 2000.  However, the applicant failed to report for his reexamination and his pay was terminated on 26 September 2001.  He was administratively removed from the TDRL on 24 January 2003.  No final physical examination was completed and the applicant did not contact officials at the U.S. Army Physical Disability Agency (USAPDA) after his 1999 examination. 

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

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be permanently retired by reason of permanent disability has been noted.  

2.  The applicant was placed on the TDRL in January 1998 and would have been 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 fact that USAPDA notifications made it to him because he showed up for his 1999 periodic examination.

4.  However, by the applicant’s own admission, he did not keep the USAPDA informed of his current address and the USAPDA was unable to locate him for his final scheduled medical examination.  Accordingly, the USAPDA removed him from the TDRL in January 2003 when he had served the maximum time allowed by law on the TDRL.

5.  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.

6.  If the applicant could provide his VA medical records and his VA rating decisions that document his medical condition in 2003 and currently, he may apply for reconsideration.

7.  Given that the evidence shows he was properly removed from the TDRL, there appears to be no basis to grant his request at this time.

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)                                         AR20120009461



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009461



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1