IN THE CASE OF:  	  

		BOARD DATE:  18 December 2014	  

		DOCKET NUMBER:  AR20140007076 


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 a Temporary Disability Retired List (TDRL) final physical examination.

2.  The applicant states he did not receive a letter or other communication about an examination from the U.S. Army Physical Disability Agency (USAPDA) office due to an error in communication.  He has moved several times in the past and until now he had no contact information to update the agency with his correct address, email, or phone number.  He is sure that since finding out about this all contact information has been recently updated.

3.  The applicant provides the USAPDA letter removing him from the TDRL.

CONSIDERATION OF EVIDENCE:

1.  On 1 October 1997, the applicant enlisted in the Regular Army.  He continued his service through reenlistment and an extension of enlistment.

2.  On 6 September 2007, an informal physical evaluation board (PEB) convened at Walter Reed Army Medical Center found the applicant's post-traumatic stress disorder to be unfitting.  The PEB recommended a 30 percent disability rating.  The PEB concluded that his condition was not sufficiently stable for final evaluation.


3.  On 20 December 2007, he was retired with an honorable characterization of service and transferred to the TDRL.

4.  On his application, he listed four different addresses with dates of residency in chronological order.

5.  During the processing of this case, the USAPDA provided two copies of a letter addressed to the first two addresses he listed on his application and evidence of attempts to have those letters delivered to him via Federal Express and certified mail.  Each letter, dated 9 June 2012, indicated the purpose of the letter was to inform him that his tenure on the TDRL would expire due to their records indicating he had never completed a periodic examination while on the TDRL.  It stated the letter was being sent to him in an attempt to allow him to take a final examination.

6.  A USAPDA memorandum for record, dated 19 July 2012, states the letter addressed to the Brighton, CO address was signed for on 14 June 2012 and as of 14 July 2012, the applicant had not responded.  The addresses used were obtained from multiple government sources, such as his file, the Department of Veterans Affairs (VA), the Defense Enrollment Eligibility Reporting System, and the Defense Finance and Accounting Service (DFAS).

7.  USAPDA Orders D356-02, dated 21 December 2012, stated that the applicant had failed to complete a scheduled physical re-examination required by law.  Because of this and the fact that he had been on the TDRL for the allowable 5 years, he was administratively removed from the TDRL effective 20 December 2012.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  Chapter 7 outlines procedures for administration and processing of Soldiers whose names are on the TDRL.  It provides that a Soldier’s name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, U.S. Code, section 1201 (10 USC 1201), but for the fact that his or her disability is determined not to be of a permanent nature and stable.
   
   a.  Paragraph 7-4 states that a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  It states that Soldiers on the TDRL will send notification of their change of address to 
U.S. Army Physical Disability Agency (AHRC–DO), Operations, 2530 Crystal Drive, Arlington, VA 22202-3934.
   
   b.  Paragraph 7-11 states that the USAPDA will take the actions described below when a periodic examination cannot be carried out.  Subparagraph (4) (Removal on fifth anniversary) 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 a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses to complete a medical examination, USAPDA will make an effort to discover the reason.  USAPDA will keep the Soldier’s name on the TDRL until the fifth anniversary unless it is removed sooner by other action.  When reasonable efforts to locate the Soldier are unsuccessful, 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, USC, Chapter 61.

   c.  Appendix C-10 states that TDRL status is authorized for a maximum of 5 years, but permanent disposition may be made at an earlier date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not receive a communication about an examination from the USAPDA office and until now he had no contact information to update the agency with his correct address, email, or phone number.

2.  It was his responsibility to keep the USAPDA informed of his contact information.  However, evidence shows he failed to do so.  Evidence further shows that the USAPDA made every reasonable effort to contact him to arrange for an examination by searching for possible addresses from other government agencies.  Furthermore, a USAPDA memorandum for record shows on 14 June 2012 a letter informing him that his tenure on the TDRL would expire was signed for.  The letter stated this was due to him having never completed a periodic examination while on the TDRL and that the letter was being sent to him in an attempt to allow him to take a final examination.  The USAPDA received no response from him as of 14 July 2012. 

3.  Placement on the TDRL cannot be longer than 5 years.  At the end of those 5 years, Soldiers must be removed and given a final rating.  Based upon lack of the required TDRL re-examination and the expiration of 5 years on the TDRL, the applicant was removed from the TDRL.  This action was administratively correct.

4.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout placement and removal on the TDRL.  Therefore, there is an insufficient evidentiary basis to support granting the applicant his 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)                                         AR20140007076



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ABCMR Record of Proceedings (cont)                                         AR20140007076



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