IN THE CASE OF:	

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120014565 


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, the Physical Evaluation Board (PEB) results for her Temporary Disability Retired List (TDRL) reevaluation be nullified and a new evaluation be performed. 

2.  The applicant states her rating for post-traumatic stress disorder (PTSD) was reduced from 50 percent (%) to 0% without an examination or current medical records.  She states she was not given the opportunity to be examined or to review the narrative summary to appeal the rating despite the fact that she has been receiving regular treatment at the Fayetteville, NC, Veterans Center.  She claims she received a letter from Ivan Walks Company stating she would receive an appointment with Behavioral Health for her TDRL examination; however, she never received anything, nor was she able to get in touch with them.  After she did not receive her payments from the Department of Veterans Affairs (VA) on    1 April 2012, she was informed that a TDRL reevaluation PEB had been completed which resulted in 10% rating.  

3.  The applicant provides a letter from the Fayetteville, NC, Veterans Center.  In addition, the address listed on the applicant’s application is reflected as Lillington, NC.

CONSIDERATION OF EVIDENCE:

1.  Having previous enlisted service in the Regular Army, the applicant enlisted in the U.S. Army Reserve, on 7 August 1996, in pay grade E-4.  She successfully completed multiple extensions of service and on 1 August 1997, she completed the requirements for military occupational specialty 95B (Military Police).  On      9 August 2004 she entered active duty and was deployed to Kuwait/Iraq for the period 13 October through 22 December 2004.  She was released from active duty on 31 January 2006.  On 28 April 2006, she once again entered active duty and she was deployed to Iraq for the period 28 April through 29 October 2006.  

2.  Her records are void of any evidence she was recommended to appear before a Medical Evaluation Board (MEB); however, on 17 February 2009, an informal PEB convened at Fort Lewis, WA, and considered the applicant’s disabilities of PTSD and noncardiac chest pain evaluated as supraventricular tachycardia (SVT).  The PEB determined that any other medical conditions were not unfitting and non-disqualifying; therefore, they were not ratable.  The PEB reviewed all available medical records and determined the applicant's medical condition prevented performance of duty in her grade and specialty.  The PEB found the applicant physically unfit based upon 50% for PTSD and 10% for SVT and recommended a combined rating of 60 percent.  Her impairments were rated at a disability level of 30% or more, but were such that a permanent evaluation was not yet possible.  She was therefore placed on the TDRL and informed that she:

   a.  must keep the U.S. Army Physical Disability Agency (USAPDA) informed of her current mailing address.  Failure to do so would result in a termination of her retired pay;    

   b.  report for scheduled examinations where and when directed.  Failure to report would result in the termination of her retired pay;
   
   c.  maintain medical evidence to be presented to the next PEB and furnish the examining physician copies of all medical records (civilian, VA, and all military medical records) documenting treatment since placement on the TDRL or last TDRL reevaluation.  Failure to comply with this requirement may result in termination of disability retired pay;
   
   d.  keep the USAPDA informed of major changes to her medical condition; however, the applicant or her treating physician may request reevaluation prior to her scheduled time due to dramatic changes; 
   
   e.  a TDRL reevaluation would occur within approximately six months of her separation from service; and
   
   f.  The applicant was also advised that she should contact the VA to learn about available benefits.  The PEB noted that the voting membership of the PEB included a voting member of the Reserve Components.  On 24 February 2009, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of her case.

3.  On 16 July 2009, the applicant was honorably retired from active duty, in pay grade E-5, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(2), for temporary disability.  She provided a mailing address in Fayetteville, NC, and the address of a nearest relative.

4.  On 24 July 2009, she was sent a letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay section to the address she provided upon her separation.

5.  Evidence shows that in August 2009 the applicant changed her address with DFAS.  Her records further show the U.S. Army Human Resources Command, Combat-Related Special Compensation Branch sent correspondence to her new address on 7 April 2010.  The address is also located in Fayetteville, NC.

6.  The applicant's records contain a memorandum from the Contact Representative/TDRL, dated 16 September 2011, to the President of the PEB, Walter Reed Army Medical Center, which indicates the applicant had been contacted, had failed to comply, and her case was being forwarded to the PEB for review.  It is unclear how or to what extent the applicant failed to comply.

7.  On 10 January 2012, an informal PEB reviewed the report of her recent periodic medical examination and other available medical records.  The PEB found her noncardiac chest pain evaluated as SVT remained an unfitting condition and was rated at 10%; however, the Board found the applicant continued to have mild symptoms of PTSD, but she did not receive any treatment and she was employed full-time.  Her most recent psychiatric evaluation indicated she had chronic mild PTSD which is not a medically disqualifying condition for military service; therefore, the applicant was found not unfit for this condition and stated the revised PEB rating of 10% more accurately reflected the current degree of severity of her condition.  The PEB considered her condition to have improved so as to be ratable at less than 30% with severance pay.  

8.  Her records contain a letter from the PEB, dated 10 January 2012, which informed the applicant that the PEB recommended she be removed from the TDRL and instructed her to promptly contact the PEB liaison officer.   The letter further informed her that Army policy for removing a member from the TDRL required her to show whether she agreed with the findings and recommendations of the PEB and she would not be separated or retired because of physical disability without a formal hearing, if she requested one.  The hearing would give her the chance to make the PEB aware of the facts she believes may have a bearing on the outcome of her case.  

9.  Her records contain a memorandum from Ivan Walks and Associates, dated  3 February 2012, which states the applicant failed to make an election to the PEB proceedings.  The memorandum stated a packet was mailed to the applicant at the Fayetteville, NC, address, but was met with no response.  The memorandum further instructed the PEB to process the applicant’s case without her election.

10.  Records also show the Lead Veteran Evaluation Liaison Officer for Ivan Walks and Associates attempted to contact the applicant by email on                27 February 2012, to no avail.

11.  Her records contain Orders D072-15, issued by the USAPDA, dated           12 March 2012, which removed the applicant from the TDRL and discharged her from service on 12 March 2012, due to permanent physical disability.  Her percentage of disability is listed as 10% with an entitlement to severance pay.

12.  The applicant provides a letter from a Readjustment Counselor at the Fayetteville, NC, Veterans Center, dated 2 May 2012, which states the applicant is an active client who is diagnosed with PTSD as a result of military sexual trauma in 2004.  She reports an increase in PTSD symptoms directly related to her sexual trauma and walked into the center for counseling services.

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

14.  Chapter 4 of Army Regulation 635-40 contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  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%.  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%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, the PEB results for her TDRL reevaluation be nullified and a new evaluation be performed. 

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.  The record shows the PEB determined the applicant was unfit for further service and granted her a 60 percent disability rating and directed her placement on the TDRL.

3.  On 10 January 2012, a TDRL reevaluation PEB convened and considered her condition to have improved so as to be ratable at less than 30% with severance pay.  The PEB recommended she be removed from the TDRL and instructed her to promptly contact the PEB liaison officer.  A letter sent to the applicant at her Fayetteville, NC, address further informed her that the Army policy for removing a member from the TDRL required her to show whether she agreed with the findings and recommendations of the PEB and further stated that she would not be separated or retired because of physical disability without a formal hearing, if she requested one.  

4.  Based on the applicant’s change of address from Fayetteville to Lillington, NC, it is reasonable to presume the applicant never received the TDRL reevaluation PEB findings in order to make an election.  

5.  While there appears to be no error, there is a sufficient evidentiary basis to support granting partial relief in this case as a matter of equity. 





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

* Revoking Orders D072-15, dated 12 March 2012
* paying her retired pay at the disability percentage rate of 60% effective   12 March 2012 
* directing the USAPDA to provide her an opportunity to make an election on the 10 January 2012 PEB reevaluation proceedings 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to nullifying the 10 January 2012 PEB results of her TDRL evaluation and requiring a new evaluation be performed at this time.

 


      _______ _   __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)                                         AR20120014565





ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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