RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  12 February 2004
	DOCKET NUMBER:  AR2003088765

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

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Robert J. Osborn		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that she be placed in the Retired Reserve by reason of physical disability with entitlement to retired pay.

2.  The applicant states that she was mentally ill at the time of her separation from active duty and was not aware of the requirement for annual examinations while on the Temporary Disability Retired List (TDRL).  At the time she had a schizophrenic disorder and was paranoid.  The requirement to be examined by the military and not the Department of Veterans Affairs (VA) should have been made clear to her.

3.  The applicant provides a letter of explanation on her past behavior to the Physical Disability Agency (PDA).

CONSIDERATION OF EVIDENCE: 

1.  The applicant's available records show that she enlisted and entered active duty in the pay grade of E-4 as a college graduate on 21 July 1994.  She completed training as a personnel administration specialist and was assigned to Fort Gordon, Georgia.

2.  In November 1996 she gave birth to twins.  One child died 4 days later.

3.  On 18 April 1997, the applicant was admitted to the inpatient psychiatry ward at Eisenhower Army Medical Center (EAMC) for bizarre and paranoid behavior.  She had been command referred.

4.  The Narrative Summary in support of the Medical Evaluation Board (MEB) resulted in diagnoses of major depressive disorder, single episode, severe with psychotic features, with postpartum onset, manifested by an approximate 6 month history of depressed mood and emotional labiality, anhedonia, excessive guilt, poor energy, and concentration, noted work difficulties, suicidal ideation and suicidal attempt, and psychotic features with paranoid delusions of a conspiracy to take her child, and confusion regarding chain of command and social relationships.

5.  The results of the MEB conducted on 26 June 1997 consisted of the same diagnosis and a determination of marked impairment for further military duty and considerable impairment for social and industrial adaptability.  It was determined to be in the line of duty, not to have existed prior to service, and not service aggravated.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB) and was considered mentally competent for pay and administrative board purposes.  The applicant concurred with the MEB findings and recommendation on 30 July 1997.
6.  On 6 August 1997, a PEB was conducted resulting in a determination that the applicant's psychiatric condition rendered her unable to perform her military duties.  The PEB recommended she be placed on the TDRL with a disability rating of fifty percent based on a diagnosis of major depressive disorder, single episode with psychotic features, with postpartum onset rated as considerable.  The PEB Proceedings also informed the applicant that failure to report for future scheduled periodic examinations or to inform the Total Army Personnel Command (PERSCOM) of a change of address could result in suspension of retired pay.  She was scheduled to be reexamined in February 1999.

7.  Effective 26 October 1997, the applicant was separated from active duty by reason of temporary disability under the authority of Army Regulation 635-40, paragraph 4-24b(2) in the pay grade of E-4.  She had 3 years, 3 months, and 5 days creditable service and 1 day of lost time.

8.  Correspondence dated 9 August 2001, from the Physical Disability Agency (PDA) shows that the applicant was directed to report to the EAMC for a periodic physical examination in October 2001.  On 5 October 2001, the applicant was provided written instructions by the EAMC on obtaining appointments for her periodic physical examination.  She was notified that if she failed to return the completed documents within 2 weeks, her TDRL packet would be returned to the PDA.  On 27 March 2002 the EAMC returned the applicant's TDRL packet to the PDA noting that her packet had been returned as unclaimed mail.

9.  On 10 April 2002 the PDA sent a notice to the applicant that she had failed to report for her periodic physical examination as required by law.  She was further notified that if she failed to provide an explanation for her failure to comply within 30 days, her eligibility to receive Army retired pay would be terminated and her military identification card cancelled.  On 15 May 2002 the PDA sent the applicant another notice providing her one additional chance to comply with the requirement to complete a periodic physical examination and maintain her Army retired status.  She was again notified that she would be terminated from her TDRL status if she failed to respond within 30 days.  There was no response to this letter and the applicant was removed from the TDRL effective 26 October 2002.  Notations on the administrative removal memorandum note that her retired pay had been originally terminated on 8 September 1999 indicating that she never presented herself for the required periodic physical examination since her separation from active duty.

10.  Information made available by the VA notes that the applicant received her initial disability rating of 30 percent in March 1998 and that it was increased to 100 percent in January 2001.

11.  In an undated letter to the PDA, believed to have been written in early 2003, the applicant requests reconsideration for permanent Army retirement benefits.  The applicant explains her many psychiatric problems and how she neither read nor understood the papers she signed to leave active duty.  She claimed that she was never told about the need for periodic physical examinations or the need to stay in contact with the Army.  She finally received assistance to go to the VA in February 1998 and has been treated by them ever since.

12.  The PDA responded to the applicant on 7 March 2003.  The response noted that she had failed to comply with repeated requests for periodic physical examinations and maintaining a current address with the Army.  She had been removed from the TDRL in accordance with regulation and her case was now considered closed.  She was advised she could request a further review from this Board.

13.  Department of Defense Instruction (DoDI) 1332.38 provides the policy and prescribes the procedures for separation or retirement for physical disability.  Paragraph 5.5.5. states that the Service Secretaries will manage the TDRL for timely periodic physical examinations, suspension of retired pay, and removal from the TDRL.  Paragraph E3.P6.2.6. states that when a service member on the TDRL refuses or fails to report for a required periodic physical examination or to provide medical records, their disability retired pay may be terminated.  If the member does not undergo a periodic physical examination after disability retired pay has been terminated, they will be administratively removed from the TDRL on the fifth anniversary of placement on the list and separated without entitlement to any benefits.

14.  Army Regulation 635-40 provides the policy for physical disability evaluation and the disposition of soldiers found unfit because of physical disability.  Paragraph 7-4 provides that a soldier must undergo a periodic medical examination at least once every 18 months.  Soldiers who fail to complete a physical examination when ordered will have their disability retired pay suspended.  Additionally, soldiers will notify PERSCOM of any change of mailing address.

15.  Paragraph 7-11 states that soldiers on the TDRL shall not be entitled to permanent retirement without a current acceptable medical examination, unless just cause is shown for failure to complete the examination.  PERSCOM will make a final attempt to contact the soldier 6 months prior to the fifth anniversary of placement on the TDRL and arrange a final examination.  If the soldier fails to undergo a physical examination, PERSCOM will remove them from the TDRL on the fifth anniversary of placement on the list without entitlement to any benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was notified of her two responsibilities concerning her TDRL status and the penalties for failure to comply with those responsibilities.  She was provided every possible opportunity under the law to maintain her status on the TDRL with eventual permanent retirement.  She failed to follow two simple procedures to maintain her status on the TDRL and she is not now entitled to be returned to a retired status by reason of physical disability.

2.  Her contentions of mental incapacity during the MEB and PEB process and subsequent to her placement on the TDRL are noted.  However, she was considered mentally competent by military medical authorities for pay and administrative board purposes and subsequently participated in the VA disability process for her initial 30 percent rating in 1998 and later appeals of that rating that led to an increase by the VA to 100 percent.

3.  The applicant offers no explanation on her repeated failure over 5 years to notify the Army of her change of address or attempt to schedule a periodic medical examination, which she knew was a requirement for maintaining her TDRL status.  She clearly forfeited her Army disability benefits in favor of VA disability benefits.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jl___  ___ro_____  ___le___  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.

		____Joann Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088765	
SUFFIX		
RECON		
DATE BOARDED	20040212	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.	108.06	
3.		
4.		
5.		
6.