BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006280 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006280 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, in effect, correction of his records to show he was permanently retired for physical disability versus being transferred to the Retired Reserve. In the alternative, he requests he receive a final physical examination to determine his status. 2. The applicant states, in effect, that while on the temporary disability retired list (TDRL), he was unable to be present on 9 April 2008 for his final scheduled physical examination. He wants a medical retirement. Additionally, he requests an examination, if necessary. 3. The applicant provides: * a two-page typed document, dated 11 March 2008 * Orders D100-05, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC on 9 April 2008 * a letter from the Department of Veterans Affairs (VA), dated 15 January 2016 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 Arkansas Army National Guard (ARARNG) on 13 September 1984. 3. The applicant was ordered to active duty on 19 November 1988, for service in the State Active Guard and Reserve (AGR) Program. He continued his service through reenlistments and extensions and obtained the rank of sergeant first class (SFC) on 19 July 2000. 4. A formal physical evaluation board (PEB) was convened on 21 November 2002 at Fort Sam Houston, TX, at which the applicant appeared with counsel. His DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows: a. After a review of all available evidence and testimony, the PEB found the following medical conditions to be unfitting and recommended the associated disability percentages: * chronic pain, neck, right hand, lower back and rated as moderated and constant, taking narcotic(s) daily – 20 percent * post-traumatic stress disorder (PTSD) and major depressive disorder with history of sleep disorder, increased arousal, social detachment, avoidance of stimuli related with trauma and rated as mild social/industrial impairment – 10 percent b. The PEB found the applicant physically unfit and recommended a combined disability rating of 30 percent, with placement on the TDRL and reexamination during May 2004. c. The applicant was informed that the USAPDA could request information from him concerning his medical treatment to assist in future evaluations of his case during his tenure on the TDRL. Also, failure to report for a scheduled periodic examination or to inform the U.S. Total Army Personnel Command (PERSCOM) of a change in address could result in the suspension of his retired pay. d. The applicant concurred with the PEB findings on 21 November 2002. The findings and recommendation were approved on behalf of the Secretary of the Army on 22 November 2002. 5. The applicant was retired on 10 March 2003, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (2), by reason of disability, temporary. He completed 14 years, 7 months, and 9 days of net active service. 6. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was placed on the TDRL effective 11 March 2003. He completed 18 years, 5 months, and 29 days of net service. It was further noted that he had been issued a Notice of Eligibility for Retired Pay at Age 60 (15-Year Letter). 7. Order 211-003, issued by the ARARNG on 30 July 2003, shows the applicant was honorably discharged from the ARNG and assigned to the Retired Reserve effective 11 March 2003. 8. USAPDA Letter Orders D 05-067, issued on 15 January 2004 with an accompanying letter, were sent to the applicant. These orders attached the applicant to Reynolds Army Community Hospital, Fort Sill, OK, effective May 2004, for the purpose of a periodic physical examination. 9. The applicant received a letter from the VA Regional Office, North Little Rock, AR, on 29 March 2004, informing him that the VA had rated him as 100 percent permanently disabled, with service-connected status. 10. USAPDA Letter Orders D 04-216, issued on 12 September 2005 with an accompanying letter, were sent to the applicant. These orders attached the applicant to Reynolds Army Community Hospital, Fort Sill, OK effective September 2005, for the purpose of a periodic physical examination. 11. USAPDA Letter Orders D 01-242, issued on 7 February 2006 with an accompanying letter, were sent to the applicant. These orders attached the applicant to Reynolds Army Community Hospital, Fort Sill, OK effective February 2006, for the purpose of a periodic physical examination. 12. The above letters all mentioned the applicant's option of having the examination conducted at his facility, another Federal hospital or clinic, or by a civilian physician at or near his home. 13. The applicant received a letter from the TDRL Branch, USAPDA, dated 21 July 2006, informing him that they received notification of his February 2006 missed periodic physical examination. The letter noted that as a member of the TDRL, he was required by law to undergo physical examination(s) as ordered by the Secretary of the Army, and the requirement existed even if he waived Army retired pay in favor of VA compensation. 14. USAPDA Letter Orders D 11-180, issued on 3 August 2006 with an accompanying letter, were sent to the applicant. These orders attached the applicant to Reynolds Army Community Hospital, Fort Sill, OK effective November 2006, for the purpose of a periodic physical examination. 15. A letter from the USAPDA, dated 26 July 2007, notified the applicant that his eligibility to receive retired pay was terminated effective 26 July 2007 under the authority of Title 10, U.S. Code, section 1210. This action was due to his failure to report for his periodic medical examination. It further noted: * the entitlement to an identification and privilege card was also terminated * in order to reinstate his eligibility to receive retired pay, he must request another appointment for an exam with a written explanation of the reason for his failure to report for previous exams * no further action would occur until he complied by 9 March 2008, the date his tenure on the TDRL expires, and would have no alternative but to remove him from the list without benefit of a medical evaluation 16. The USAPDA notified the Defense Finance and Accounting Service (DFAS), by letter dated 26 July 2007, that the applicant's tenure on the TDRL had expired on 26 July 2007 and he had been administratively removed from the TDRL and his eligibility to receive retired pay was terminated. 17. A USAPDA letter, dated 20 March 2008, was sent to two separate addresses the USAPDA had on file for the applicant. USAPDA notified the applicant his tenure on the TDRL expired on 11 March 2008 and records at USAPDA indicated that he had never undergone a periodic medical examination while on the TDRL. USAPDA provided a point of contact for the applicant to receive assistance in scheduling a final physical examination. USAPDA stated if the applicant did not contact them within 10 days of receipt of the letter, he would be administratively removed from the TDRL and he would lose any eligibility for future disability benefits from the Army. 18. USAPDA Orders D100-05, issued on 9 April 2008, administratively removed the applicant from the TDRL without entitlement to severance pay effective 9 April 2008, based on his failure to complete a scheduled physical reexamination as required by law. The additional instructions state removal is based upon failure to comply and the 5 years maximum tenure on the TDRL in accordance with Army Regulation 635-40; Department of Defense Instruction 1332.38 (Disability Evaluation System); and Title 10, U.S. Code, section 1210. A copy was furnished to DFAS as well. 19. The applicant provides: a. A two-page typed document, dated 11 March 2008 (presumed to be from the USAPDA), with the applicant's name that shows a timeline of events from his placement on the TDRL until his removal. It shows he cancelled or missed numerous appointments and examinations from May 2004 through June 2007. It shows the applicant contracted the USAPDA point of contact by phone on 24 March 2008, wanting to be removed from the TDRL because he had been receiving 100 percent disability from the VA and did not wish to waste time with the Army. b. A letter from the VA, dated 15 January 2016, that shows a summary of his benefits. This letter indicates the applicant's disability rating of 100 percent was considered service-connected. 20. In connection with the processing of this case, an advisory opinion was obtained on 30 August 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. a. The medical officer restated the applicant's military request and medical history including his processing through the PDES (Physical Disability Evaluation System). He reviewed all available military and VA medical records b. After a comprehensive review of all available military and VA medical records, the medical advisor found no evidence of a medical disability or condition which would support a change to the disability determination or disability ratings for the discharge in this case. c. The applicant failed to attend his required TDRL reexaminations, and as a result was administratively separated/removed from the TDRL. During that same time period the applicant attended numerous VA appointments. Therefore, there is no military medical reason for reassessing or reexamining the applicant. 21. A copy of the advisory opinion was forwarded to the applicant on or about 31 August 2017 for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABMCR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-40 established the Army PDES and set forth policies, responsibilities, and procedures that governed the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. Chapter 7 outlines procedures for administration and processing of Soldiers whose names are on the TDRL. 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. Soldiers who fail to complete a physical examination when ordered will have their disability retired pay suspended. It further states that Soldiers on the TDRL will send notification of their change of address to USAPDA. b. 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. If his/her name is not sooner removed, the disability retired pay of a member whose name is on the TDRL terminates upon the expiration of five years after the date when his/her name was placed on that list. DISCUSSION: 1. The evidence of record shows that on 21 November 2002 a PEB found the applicant was physically unfit and recommended a disability rating of 30 percent and placement on the TDRL with reexamination during May 2004. 2. The applicant was retired by reason of disability, temporary and was placed on the TDRL effective 11 March 2003. The date of his removal from the TDRL was established as 5 years from the date he was placed on the TDRL. 3. The applicant was ordered, on four occasions between from 15 January 2004 and 3 August 2006, to report for a periodic physical examination. He was then notified on 26 July 2007 that due to his failure to report for his periodic medical examinations his eligibility to receive disability retirement pay was terminated effective 26 July 2007 under the authority of Title 10, US Code, section 1210. He was also informed that: * in order to reinstate his eligibility to receive retired pay, he must request another appointment for an exam with a written explanation of the reason for his failure to report for previous exams * no further action would occur until he complied by 9 March 2008, the date his tenure on the TDRL expires, and would have no alternative but to remove him from the list without benefit of a medical evaluation 4. A USAPDA letter, dated 20 March 2008, notified the applicant that his tenure on the TDRL expired on 11 March 2008 and provided a point of contact in order for the applicant to schedule a final physical examination within 10 days. 5. There is no evidence that shows he submitted justification for his failure to undergo a periodic examination or that he underwent any medical examination during the 5-year period he was placed on the TDRL as required by law. 6. As a result, the USAPDA administratively removed him from the TDRL without entitlement to severance pay effective 9 April 2008 for failure to complete a scheduled physical reexamination as required by law. The medical advisor noted that during the period the applicant was failing to attend required TDRL examinations, he attended numerous VA appointments. The medical advisor found no evidence in this case that would support reexamination of the applicant or any other record correction. BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006280 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006280 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006280 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2