BOARD DATE:	  19 February 2015

		DOCKET NUMBER:  AR20140010782 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his narrative reason for separation as "Permanent Disability," that his disability rating be increased to at least 50 percent (%), and that he be paid all back pay to the date he was removed from the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, that his records should be corrected to show that he was granted permanent disability because he was not allowed to reschedule his physical evaluations due to being out of the country in his civilian employment during the 5-year evaluation period.  He goes on to state that over the 24 years since that time his service-connected condition has worsened and he should have been permanently retired with an increased disability rating.

3.  The applicant provides two two-page letters explaining his application; a letter from his civilian employer; excerpts from Title 10, U.S. Code, section 1210; orders placing him on the TDRL; a copy of his DD Form 214; and copies of medical documents related to his placement on the TDRL.

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 enlisted in the Regular Army on 29 August 1985 for a period of 4 years and training as an armor crewman.  He completed his one-station unit training at Fort Knox, Kentucky and was transferred to Baumholder, Germany on 8 January 1986.  He was advanced to the pay grade of E-4 on 1 September 1987 and departed Germany on 29 December 1987 for assignment to Fort Irwin, California.

3.  On 7 December 1988, a Physical Evaluation Board (PEB) convened at the Presidio of San Francisco, California and determined that his diagnosis of dyspepsia with reflux esophagitis with two linear erosions, improved with therapy and restriction of activity, was unfitting and assigned a 30% disability rating.  The PEB also opined that his problems were of such a nature that evaluation of a permanent degree of severity was not possible at that time and that the U.S. Army Physical Disability Agency (USAPDA) could request information from the Soldier concerning his treatment during his tenure on the TDRL.  The PEB recommended that he be placed on the TDRL with reevaluation in December 1989.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

4.  On 17 January 1989, he was retired by reason of temporary disability with a 30% disability rating.  He had served 3 years, 4 months and 18 days of active service and was placed on the TDRL effective 18 January 1989.  The applicant provided an address in Florida as his permanent address.

5.  On 5 September 1989, orders were published by the USAPDA authorizing the applicant to travel to Fort Stewart, Georgia for the purpose of a periodic physical examination in December 1989.  The applicant acknowledged receipt of the orders and provided a new address in Las Vegas, Nevada

6.  The applicant did not show up for his periodic physical at Fort Stewart and was rescheduled for a periodic physical at Fort Irwin, California in April 1990.  The applicant failed to show for that examination and was again rescheduled for a periodic physical at the Naval Hospital in San Diego, California on 29 August 1990.  He again failed to show for his appointment. 

7.  The applicant was scheduled for an evaluation at Nellis Air Force Base, Nevada on 20 March 1991 and again failed to show for his appointment.

8.  On 12 November 1991, the USAPDA dispatched a letter to the applicant informing him that he had failed to report for his periodic examinations and that as a member of the TDRL he was required to undergo periodic examinations as ordered by the Secretary of the Army.  He was also advised that the requirement existed even if he had waived his retired pay in favor of Veterans Affairs (VA) compensation.  He was also advised that if he did not provide an explanation for his no-shows, no further efforts would be made to schedule him and that his retired pay would be terminated.

9.  On 3 March 1992, the USAPDA dispatched a letter to the applicant informing him that his retired pay would be terminated effective 10 March 1992 due to his failure to report for periodic examinations.

10.  On 10 June 1994, the U.S. Total Army Personnel Command dispatched an order to the applicant that administratively removed him from the TDRL effective 17 January 1994.  In addition, a memorandum was dispatched to the Defense Finance and Accounting Service (DFAS) directing the DFAS to terminate the applicant’s retired pay payments effective 17 January 1994.

11.  Army Regulation 635-5 serves as the authority for the preparation of the 
DD Form 214.  It provides that the DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty.  It also provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Service on the TDRL is not creditable service.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier’s service.  It further states a DD Form 214 will not be prepared for Soldiers removed from the TDRL or subsequently retired by reason of permanently disability.

12.  Title 10, U.S. Code, section 1210 provides, in pertinent part, that a physical examination shall be given once every 18 months to each member of the armed forces whose name is placed on the TDRL to determine whether there has been a change in the disability for which he or she was temporarily retired.  If a member fails to report for an examination and does not provide just cause for such failure, his or her disability retired pay may be terminated.

DISCUSSION AND CONCLUSIONS:

1.  At the time the applicant was retired and placed on the TDRL his disabilities were considered to be too unstable for a final determination to be made.  Accordingly, he was temporarily retired and properly issued a DD Form 214.
2.  At the time the applicant was removed from the TDRL he was not on active duty and as such, he did not meet the criteria for issuance of a subsequent DD Form 214.  Additionally, the applicable regulation specifically states a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

3.  A review of the applicant’s records failed to show any evidence to indicate that the applicant complied with any aspect of being on the TDRL in that he not only did not report for any of his scheduled physical examinations, he also did not provide an explanation at the time as to why he missed his periodic examinations.

4.  The applicant had an obligation to keep Department of the Army officials informed of his current address and changes to his medical condition and there is no indication in the available records to show that he did so.  Accordingly, he was properly removed from the TDRL in accordance with the law and applicable regulations.

5.  In view of the foregoing, there appears to be no basis to grant the applicant’s request.  

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)                                         AR20140010782





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ABCMR Record of Proceedings (cont)                                         AR20140010782



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