IN THE CASE OF:	  

		BOARD DATE:  13 March 2014

		DOCKET NUMBER:  AR20130009676 


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 he be reinstated on the Temporary Disability Retired List (TDRL).  

2.  The applicant states:

	a.  His disability was incurred in the line of duty.

	b.  He wants to be reassessed and if so determined to be permanently retired from the Army with the appropriate benefits.

	c.  The letter he received in July 2010 states he failed to complete a scheduled physical reexamination, but the fact is he arrived at the location of the reexamination (Great Lakes Naval Base, IL) on the appointed date and time.  However, that facility had recently changed its security policies and he did not have the requisite documentation to gain entry.  He immediately contacted the scheduler to explain the situation and he requested another examination date.  His next contact was the aforementioned letter.

	d.  His calling in life was to be an Army officer, a dream he realized in 2002 when he graduated from West Point.  That dream was taken from him in 2004.  A panel determined he was unfit for military service based on a sleep disorder that he contracted while in the line of duty, leading Soldiers in preparation for combat operations in Iraq.  He was placed on the TDRL and told to remain in contact with the necessary authorities for the next 5 years.

	e.  Working at West Point as a civilian for almost 4 years, he made many visits to both the post personnel and medical officer.  He underwent a TDRL examination at Keller Army Community Hospital at West Point, NY and also scheduled and completed an appointment with the Department of Veterans Affairs (VA) Medical Center in East Orange, NJ.

	f.  When he was accepted into graduate school in Evanston, IL in 2008 he checked in with the West Point personnel office.  There he learned that somehow his file had been misplaced and he would need to contact a special TDRL representative.  He stayed in contact with this individual throughout his time in Illinois, making every effort to schedule his examination (he was still within the 
5-year TDRL period at this time).  Despite several missteps on the scheduler's end (such as repeated appointments in Staten Island, NY and in NJ even though he was living in Illinois), he persisted in pursuing an examination date.  Finally, he received an appointment at Great Lakes Naval Base.  However, he could not enter the base since his military identification had expired.  

3.  The applicant provides:

* TDRL timeline
* TDRL identification with expiration date
* Employment letter
* Letters confirming VA examination appointment in East Orange, NJ
* Letters confirming West Point as assigned medical facility
* Physical Evaluation Board Liaison Office (PEBLO) letter confirming periodic examination location at West Point
* Graduate school transcripts confirming residence in Evanston, IL
* TDRL removal letter 
 
CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve on 1 June 2002 and he entered active duty.  He was promoted to first lieutenant on 1 December 2003.

2.  His Medical Evaluation Board is not available for review.  On 12 October 2004, a Physical Evaluation Board (PEB) found him physically unfit due to idiopathic central nervous system hypersomnolence manifested by daytime sleepiness worsened by any significant activity resulting in a physical wakefulness during the day despite maximal medical therapy.   

3.  On 3 November 2004, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings.
4.  On 10 December 2004, he was honorably retired and placed on the TDRL the following day.  

5.  USAPDA Orders D211-08, dated 20 July 2010, state:

	a.  On 10 December 2009, he was administratively removed from the TDRL without entitlement to severance pay because he failed to complete a scheduled physical reexamination required by law.  

	b.  His removal is based upon failure to complete physical examination and 
5 years maximum tenure on the TDRL. 

6.  Paragraph 7-10 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the USAPDA will notify the Soldier of the forthcoming medical examination.  The letter will include the information below:

	a.  Name, address, and telephone number of the appointed medical treatment facility (MTF) closest to the Soldier’s home.

	b.  Name and telephone number of the PEBLO who will assist the Soldier during and after the medical examination.

	c.  The Soldier may telephone the MTF collect to resolve any problems.

7.  Paragraph 7-11 of Army Regulation 635-40 states 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.

8.  Paragraph 7-11b(4) of Army Regulation 635-40 states 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.  Six months before the fifth anniversary of placement on the TDRL, USAPDA will make a final attempt to contact the Soldier and arrange a final examination.  If this fails and the Soldier does not undergo a physical examination, USAPDA will administratively remove him or her 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 61.





DISCUSSION AND CONCLUSIONS:

1.  The applicant requests he be reinstated on the TDRL.  

2.  Evidence confirms he was:

* placed on the TDRL on 11 December 2004
* administratively removed from the TDRL without entitlement to severance pay because he failed to complete a scheduled physical reexamination required by law  

3.  He claims he did show up for his scheduled physical reexamination, but the medical facility had recently changed its security policies and he did not have the requisite documentation to gain entry.  However, there is no evidence and he provides no evidence to support this contention.  

4.  The governing regulation states the Soldier would be provided with the name and telephone number of the PEBLO who would assist him during and after the medical examination and the Soldier may telephone the MTF to resolve any problems.

5.  His removal from the TDRL based upon his failure to complete a physical examination and five years maximum tenure on the TDRL was in accordance with the governing regulation.  Therefore, there is insufficient evidence on which to base granting 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)                                         AR20130009676



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ABCMR Record of Proceedings (cont)                                         AR20130009676



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