IN THE CASE OF:	  

		BOARD DATE:  12 February 2014

		DOCKET NUMBER:  AR20130007813 


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 placed back on the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, that his TDRL status was closed in error because he failed to make an election; however, he contends that he never received written or telephonic notification of the final disposition of his medical review because the documents were mailed to the wrong address.  He contends that his address and phone number have never changed.

3.  The applicant provides:

* a self-authored letter with itemized telephone log
* Orders D354-04, dated 19 December 2012
* memorandum, U.S. Army Physical Disability Agency (USAPDA), dated 
19 December 2012
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
12 October 2012
* Telephone Invoice for the period 10 October 2012 to 9 April 2013
* U.S. Postal Service (USPS) Online Tracking Number printout
* USPS printout, Items Requiring a Signature - Accountable Mail
* Verizon Wireless Follow-Up email, dated 3 April 2013
* DA Form 5892 (PEB Liaison Office (PEBLO) Estimated Disability Compensation Worksheet)



CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 21 April 2005.

2.  On 24 July 2009, the applicant appeared before a PEB at Fort Sam Houston, TX, which determined that his medical condition of Post-Traumatic Stress Disorder (PTSD) was unfitting.  The board recommended a 50-percent combined disability rating and that he be placed on TDRL with reexamination during April 2010.

3.  On 4 August 2009 the applicant concurred with the board's finding.  His DA Form 199 lists his new address as x7xx Preston Road, Apartment 1613, Plano, TX  75093 and his cell phone number as (x1x) xxx-2819.

4.  On 28 October 2009, he was placed on the TDRL.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) lists the same address shown above.

5.  On 3 April 2012, the applicant underwent a TDRL review examination for PTSD at Darnell Army Medical Center, Fort Hood, TX.

6.  On 12 October 2012, based on a review of the applicant's TDRL examination, the PEB found that he remained unfit to reasonably perform the duties required by a previous grade and military specialty.  His current condition was considered sufficiently stable from a disability perspective for final adjudication.  The board recommended that he be awarded a combined disability rating of 10 percent and that he be separated with severance pay if otherwise qualified.  His DA Form 199 is void of his signature or his concurrence.  His address is shown as x7xx Preston Road, (no apartment number) Plano, TX  75093 and his cell phone number is listed as (x5x) xxx-0190.

7.  His record contains:

	a.  A DA Form 5889-R (PEB Referral Transmittal Document), dated
18 September 2012, completed by the Lead PEBLO.  The applicant's address is shown as x7xx Preston Road (no apartment number), Plano, TX 75093 on this transmittal.

	b.  A memorandum issued by Headquarters, U.S. Army Medical Department Activity, Fort Hood, TX, Subject:  Failure to Elect, dated 11 December 2012, which notified the applicant that after several unsuccessful attempts to deliver his board proceedings the mail remained unclaimed; therefore, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 7-20, his failure to respond or provide a statement of election was considered as waiving his right to election.

8.  He was removed from the TDRL on 19 December 2012 and his disability was rated at 10 percent.  These orders list his address as x7xx Preston Road Apt 1536, Plano, TX 75093-7438.

9.  The analyst for the ABCMR contacted the Fort Hood, TX PEBLO to obtain postal receipts verifying the mail was returned; however, those records were not available.

10.  He provides:

	a.  A self-authored statement in which he contends that his life has been on hold for several years awaiting the outcome of his psychiatric evaluation.  Despite his numerous attempts to determine the status of his case with various officials he never received a solid answer.  On 2 April 2013, he spoke with 
Mr. G---, PEBLO, Fort Hood, TX, who informed him that his case had been closed after three failed attempts to reach him by mail at x6xx Preston Road, Apt. 1536, Plano, TX 75093.  Further, that he had been awarded a 10-percent disability rating with severance pay.  The applicant contends that his address is "x7xx" not "x6xx" Preston Road.  The PEBLO also had an incorrect telephone number on file ending in 2810.  The last four digits of his telephone number end in "2819."  He believes that closing his case without providing him with a decision and an opportunity to make an election was a huge administrative error.

	b.  Personal telephone records for the period 10 October 2012 to 9 April 2013 which show he contacted the PDA, Warrior Assistance, Veterans Services, Army Review Board, USPS, and various other officials for assistance.

	c.  A tracking information inquiry in which he contends that the USPS confirmed that the tracking number he was provided was never entered into the USPS system because there were "no results found."  

	d.  A printout detailing how accountable mail is processed.  He contends that there was not ever a first attempt to deliver the mail.  Therefore, a second and third attempt was impossible.

	e.  A letter from the Verizon Wireless customer service office stating that the phone number (xxx) xxx-3680 was established on 14 September 2008 and had been in continuous service to the current date.  The number (xxx) xxx-2819 was established on 7 April 2008 and had been in continuous service to the current date.

	f.  A compensation worksheet which shows he was estimated to receive 
$32,488.56 in disability severance pay.

11.  Army Regulation 635-40, paragraph 7-20(e) states if the PEB recommends removal from the TDRL, the PEB will forward to the Soldier the DA Form 199 and letter of explanation by certified mail, restricted delivery, return receipt requested. The letter will inform the Soldier of his or 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 or her choice of options in block 13.

12.  This same regulation states that 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 by contacting HRC, the Medical Treatment Facility, the USAFAC, or the VA regional Office.  If a new address is obtained, the PEB will try to deliver the notice.  If not, a memorandum waiving the Soldiers right to election will be prepared.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be placed back on the TDRL.

2.  The record shows the applicant was placed on the TDRL on 28 October 2009, and after subsequent reevaluation on 3 April 2012, the PEB recommended that he be removed from the TDRL and rated his disability at 10 percent.  He was discharged by reason of permanent physical disability with severance pay on 
19 December 2012.

3.  The available evidence shows that the applicant's address is incomplete (missing the apartment number) on both the PEBLO transmittal document dated 18 September 2012 and the DA Form 199 dated 11 December 2012.  It appears that an administrative error occurred upon transcription of his mailing address and phone number.  This error resulted in the applicant being improperly removed from the TDRL without the opportunity to concur or appeal the PEB findings and recommendations.  

4.  Based on the above, it would be appropriate to grant the applicant relief as shown below.


BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show that he was not removed from the TDRL on 19 December 2012 by:

* revoking Orders D354-04, USAPDA, dated 19 December 2012
* forwarding his DA Form 199, dated 12 October 2012 and allied documents to the same address listed on his DA Form 199, completed on 4 August 2009
* allowing the applicant to make the appropriate election in item 13 (Election of Soldier) of his DA Form 199, dated 12 October 2012

2.  The applicant is advised that his severance pay may be recouped if the PEB determines after subsequent review that he is entitled to a disability/medical retirement.




      _______ _  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)                                         AR20130007813



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ABCMR Record of Proceedings (cont)                                         AR20130007813



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