IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150005476 BOARD VOTE: ____X____ ____X__ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150005476 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring the applicant to a Temporary Disability Retired List (TDRL) Physical Evaluation Board (PEB) to determine if his physical disability warranted placement on the Permanent Disability Retired List (PDRL). If the TDRL PEB determines that applicant should have been placed on the PDRL, these proceedings serve as the authority to amend the orders removing him from the TDRL to show he was placed on the PDRL. He should be paid any retroactive retired pay he may be due as a result of a favorable TDRL PEB decision. ____________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. IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150005476 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of his 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 correction to his record to show he was medically retired. 2. The applicant states: a. He was made aware that he was not medically retired due to missing some appointments while he was on the Temporary Disability Retired List (TDRL) in 2005. b. During this time, he was in a very dark place in his life. He was suffering with severe post-traumatic stress disorder (PTSD) and other medical ailments from his military service which caused him to be severely depressed, suicidal, and homeless. c. After intense therapy and some unfortunate but beneficial time at the Ancor Mental Health facility, he has been able to pick up the pieces of his life. d. He fully understands that regardless of the situation, it was his responsibility to make his medical appointments. e. Living with his ailments has been a one-day-at-a-time situation but he is still here and still in the fight. 3. The applicant provides Department of Veterans Affairs (VA) correspondence and medical documents from the Southern Crescent Behavioral Health System. 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. On 8 January 1998, the applicant enlisted in the Regular Army. He was awarded military occupational specialty 92F (Petroleum Supply Specialist). 3. On 26 April 2005, the applicant’s commanding officer submitted a letter to the Martin Army Community Hospital (ACH), Fort Benning, GA, and highly recommended that he be considered unfit for reasonable performance of his duties as a 92F due to his asthma. 4. On 27 April 2005, the applicant received a Medical Board Summary in which he stated that he was unable to perform formation, physical training, or perform daily aerobic physical training to full exertion due to being limited by his shortness of breath. Additionally, he was unable to wear a protective mask due to his persistent asthma and also noted that he was unable to be exposed to vehicle exhaust or fumes, which was a daily occurrence in the line of his normal duties as a 92F. He was recommended for referral to a Physical Evaluation Board (PEB) for further disposition. He was diagnosed with: * Asthma, severe, persistent * Hypertension with hypertensive heart disease * History of cardiomyopathy * Recurrent syncopal episodes (resolved) * Obesity 5. A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) dated 6 June 2005 shows he was diagnosed with asthma. 6. On 15 July 2005, the applicant concurred with the MEB’s findings. 7. A DA Form 199 (PEB Proceedings), dated 21 July 2005, shows he received an “unfit” determination due to his asthma with a recommended disability rating of 30 percent and a recommendation that he be placed on the TDRL with a reexamination in August 2006. 8. There is no documentation to show that the applicant ever claimed any PTSD symptoms or diagnosis during his MEB or PEB proceeding while on active duty. 9. Orders 234-2224, Headquarters, U.S. Infantry Center, Fort Benning, GA, dated 22 August 2005, shows the applicant was released from duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his placement of the TDRL. 10. On 27 September 2005, the applicant was honorably transferred to the U.S. Army Reserve Control Group (Reinforcement) and placed on the TDRL in the rank/grade of sergeant (SGT)/E-5. His DD Form 214 shows he served in Iraq from 4 October 2004 to 5 September 2005. 11. U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center (WRAMC), Washington, DC, Letter Orders D 08-006, dated 26 January 2006, show the applicant was given orders to report to Martin ACH, Fort Benning, GA, for his periodic physical examination in August 2006. It appears he never made the appointment. 12. USAPDA, WRAMC, Washington, DC, Orders 082-27, dated 29 March 2010, show the applicant was again ordered to report to Martin ACH, Fort Benning, GA, for his periodic TDRL physical examination in June 2010. It appears he never made this appointment. 13. A final letter from the USAPDA was sent to the applicant on 2 June 2010, which stated, “On 28 September 2010 your tenure on the Temporary Disability Retirement List (TDRL) will expire. Our records indicate that you never underwent a periodic medical examination while on the TDRL. Had this occurred, it is likely that your case could have been finalized and you could have possibly received either permanent disability retirement status (and lifelong disability benefits) or disability severance pay from the Army. This letter is being sent to all addresses we have on you in an attempt to contact you and allow you to take a final medical examination and received a final disability determination... If we receive notification that this letter was delivered to you and you have not contacted us within 10 days of receipt, we will administratively remove your name from the TDRL 28 September 2010, and you will lose any eligibility for future disability benefits from the Army.” 14. Orders 162-12, dated 11 June 2010, show the applicant was given orders to report to Martin ACH, Fort Benning, GA, for his periodic TDRL physical examination in June 2010. He did not show for his final appointment. 15. Orders D291-31, dated 18 October 2010, were sent to the applicant stating, “You have failed to complete a scheduled physical reexamination required by law. Because of this, you are administratively removed from the Temporary Disability Retired List on the date indicated [28 September 2010] without entitlement to severance pay.” 16. Although it is unclear when the applicant first claimed PTSD with the VA, it appears that on 12 July 2012 he was evaluated for PTSD which was rated at 50 percent and later increased to 70 percent, and with a 30 percent rating for asthma with an individual unemployability rating effective 3 April 2014. 17. On 2 June 2014, the applicant was admitted to the Southern Crescent Behavioral Health System for suicidal ideation. He was diagnosed with depression and released on 4 June 2014. REFERENCES: 1. The applicant's removal from the TDRL was based on his failure to complete a physical reexamination and five years maximum tenure on the TDRL in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 7-11b(4) [periodic examination not performed - removal on fifth anniversary] and Department of Defense Instruction 1332-38 (Physical Disability Evaluation), section E3.P6.2.6 [refusal or failure to report for a required periodic physical examination]. 2. Army Regulation 635-40, paragraph 7-11b(4) 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. In the case of a Soldier failing to report for examination or to reply to correspondence sent by the appropriate authority, or if the appropriate authority is unable to locate the Soldier, six months before the fifth anniversary of placement on the TDRL, a final attempt will be made to contact the Soldier or proper civil authorities (if Soldier is imprisoned by civil authorities) and arrange a final examination. If this fails and the Soldier does not undergo a physical examination, the Soldier will be administratively removed 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, section 1210, chapter 61. 3. Title 10, U.S. Code, section 1210, chapter 61 states a physical examination shall be given at least once every 18 months to each member of the armed forces whose name is on the TDRL to determine whether there has been a change in the disability for which he/she was temporarily retired. He/she may be required to submit to those examinations while his/her name is carried on that list. If a member fails to report for an examination under this subsection, after receipt of proper notification, his/her disability retired pay may be terminated. However, payments to him/her shall be resumed if there was just cause for his/her failure to report. If payments are so resumed, they may be made retroactive for not more than one year. DISCUSSION: 1. The applicant contends that he should be medically retired vice being discharged from the Army. 2. PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. 3. On 21 July 2005, a PEB found the applicant unfit for duty, rated him with a disability rating of 30 percent for asthma and recommended that he be placed on the TDRL. The applicant concurred with the PEB findings and on 27 September 2005, he was placed on the TDRL with an honorable characterization of service. 4. At some point, the applicant applied to the VA for disability compensation for service-connected disabilities. In 2012, he was diagnosed with PTSD with a rating of 50 percent, which was later raised to 70 percent in 2014. His asthma rating remained at 30 percent. In addition, he received an individual unemployability determination that granted him 100 percent compensation. 5. It appears that he was suffering from PTSD which was rated by the VA, and this was the reason for his failure to report for his medical examination. However, if it is determined by the physical disability board that the applicant should be transferred to the PDRL, he will be entitled to retroactive medical retired pay for not more than one year, pursuant to Title 10, U.S. Code, Section 1210, Chapter 61. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005476 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005476 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2