MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 September 2000                   
	DOCKET NUMBER:   AR2000042426

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the date of his removal from the Temporary Disability Retired List (TDRL) be changed from 12 December 1989 to                30 November 1992 to cover the time of his retired pay overpayment.

APPLICANT STATES:  That he was removed from the TDRL prematurely against the recommendation of the Army’s own doctor.  To add insult to injury, they overpaid him and stuck him with an enormous debt.  The overpayment was not his fault.  Finance is solely responsible for this error and it would be unjust to burden his family with a debt of this size (over $6,000.00).

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 21 May 1986.

On 9 February 1988, a Physical Evaluation Board (PEB) found the applicant unfit for duty by reason of a bipolar disorder, manic, manifested by grandiosity, increased activity and delusions of religious influence.  It was recommended he be placed on the TDRL with re-examination during August 1989.  The applicant concurred in the findings and recommendations and waived a formal hearing of his case.  He was placed on the TDRL 29 March 1988 in pay grade E-4 with a  30 percent disability rating.  He had completed 1 year, 10 months and 8 days of creditable active service.

In July 1989, the applicant was re-examined.  The TDRL evaluation discussion noted the applicant was currently not under psychiatric care and was taking no psychotropic medication.  He had apparently been symptom-free since his discharge from the Army.  It appeared the applicant was in a period of remission which was normal for bipolar disorder.  The diagnosis was sufficiently firm to preclude any re-entry on active duty.  A prognosis could not be made at that point regarding further manic and/or depressive episodes.  It was, therefore, recommended that the applicant be continued on the TDRL for another             18 months and then re-evaluated.  He was found to be competent for pay purposes.

On 20 October 1989, a PEB found the applicant to be unfit by reason of a bipolar disorder, manic, currently in full remission.  It was recommended he be separated with severance pay at a 0 percent disability rating.  On 27 October 1989, the applicant concurred in the findings and recommendations of the PEB and waived a formal hearing of his case.

On 6 November 1989, the applicant was removed from the TDRL effective        11 December 1989 and discharged with severance pay.  

The Defense Finance and Accounting Service (DFAS) apparently did not receive the orders removing the applicant from the TDRL until November or December 1992.  DFAS sent a letter to the applicant (the letter’s date is partially illegible) informing him he had been paid TDRL entitlement through 30 November 1992 although he was removed from the TDRL effective 11 December 1989 and that he was indebted for $7,468.17.  On 16 May 2000, he signed a promissory note to pay $6,002.24.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.

Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.
A soldier will be removed from the TDRL and separated with severance pay if the soldier has less than 20 years of service and is unfit because of the disability for which he was placed on the TDRL and either the disability has stabilized at less than 30 percent or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  Although the physician who performed the applicant’s TDRL re-examination may have recommended he remain on the TDRL for an additional 18 months, the applicant was properly removed from the TDRL.  His disability, although perhaps not stabilized, had improved so as to be ratable at less than 30 percent.  By regulation, he was required to be removed from the TDRL.

3.  The applicant was aware that he was going to be removed from the TDRL.  He had concurred in the PEB’s findings and recommendations.  He does not state that he did not receive his removal orders.  He does not state that he did not receive severance pay.  He continued to receive a monthly retirement check until 30 November 1992.  He provides no evidence to show he attempted to tell DFAS he was no longer on the TDRL or to show that he attempted to return the checks.  The Board concludes that it would not be an injustice to require the applicant to repay the Government this overpayment.  He should have been aware it was an overpayment when he continued to receive checks after December 1989.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JHL___  __CLG___  __ENA___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042426	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.