ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170008411 APPLICANT REQUESTS: reconsideration of his prior request for permanent disability retirement in lieu of removal from the temporary disability retired list (TDRL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from Member of Congress * Privacy Act Release Form * DD Form 214 (Certificate of Release or Discharge from Active Duty), Member-4 copy * DD Form 214, Member-1 copy * prior DD Form 149, dated July 2003 * four doctors’ letters FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040010618 on 29 September 2005. 2. The applicant states: a. He missed his fifth TDRL evaluation because he was hospitalized, due to his mental health condition getting worse. b. He was unable to follow through in responding to the Board after his last application due to his depression. 3. After a prior period of 7 months served in the Army National Guard, the applicant enlisted in the Regular Army on 18 September 1989. 4. A Narrative Summary (Clinical Resume) (NARSUM), dated 9 January 1992, states, in pertinent part: * he was referred from the Fort Meade Community Mental Health Center to Walter Reed Army Medical Center for evaluation of generalized anxiety and depression with suicidal ideation on 19 October 1991 * he was admitted to the inpatient psychiatry service ward with a diagnosis of adjustment disorder with depressed mood * his service history shows he deployed to Saudi Arabia from November 1990 to May 1990 * the applicant admitted and his command verified he was never in direct contact with the enemy, nevertheless reported fear of being fired on by passing cars and seeing SCUD missiles overhead * in his absence, his wife left him and he returned home on emergency leave feeling anxious and hopeless * he was diagnosed with major depression, single episode, dependent personality, and bruxism (involuntary habitual grinding of the teeth) 5. A DA Form 3947 (Medical Evaluation Board Proceedings), dated 22 January 1992, shows an MEB convened on the date of the form to evaluate the applicant. It shows: * he was diagnosed with major depression, single episode, without psychotic features, manifested by depressed mood, decreased interest in daily activities, insomnia, psychomotor depression, episodic psychomotor agitation, fatigue, decreased concentration, severe stress, incurred while entitled to base pay * he was diagnosed with dependent personality disorder, existed prior to service (EPTS) * he was referred to a Physical Evaluation Board (PEB) * he agreed with the board’s findings and recommendation 6. A DA Form 199 (PEB Proceedings), dated 14 February 1992, shows a PEB convened to consider the applicant’s condition of major depression, single episode. His condition of dependent personality was not ratable as it was deemed EPTS. The PEB found and informed the applicant: * his medical condition prevented satisfactory performance of duty in his grade and primary military occupational specialty and the condition had not stabilized to the point that a permanent degree of severity could be determined * he was found physically unfit with a combined disability rating of 30 percent * his disposition was recommended to be placed on the TDRL with reexamination on 8 February 1993 * failure to report for a scheduled examination or to notify U.S. Total Army Personnel Command (PERSCOM) of a change of address would result in the suspension of retired pay 7. He was retired due to temporary physical disability on 1 May 1992 after 2 years, 7 months, and 14 days of net active service. His service was characterized as honorable. 8. A letter from the Department of Veterans Affairs, dated 29 August 1992, shows he was granted a service-connected disability rating of 50 percent from the VA for depression. 9. A NARSUM, dated 16 March 1993, shows the applicant was psychiatrically evaluated as part of his TDRL reassessment on the date of the form. It shows: * he had one follow up appointment with the VA since being placed on the TDRL * he self-discontinued his antidepressant medication, Prozac, 3 months prior as he felt he did not need them * without medication he noted a progressed return of his depressive symptoms * he was diagnosed with major, recurrent, severe depression without psychotic features * he remained diagnosed with dependent personality disorder, EPTS, manifested an inability to make everyday decisions without excessive reassurance * it was recommended he remain unfit for further military duty as he continued to manifest significant symptoms of a major psychiatric illness and he be recommended for permanent retirement 10. A DA Form 199, dated 22 April 1993, is stricken through with the remarks, the applicant is not seeking treatment and not taking medications. A formal PEB was directed. The applicant was notified by letter from the Army PEB, dated 23 April 1993, of the requirement for him to appear before a formal PEB on 23 May 1993. 11. On 25 May 1993, the formal PEB found there was sufficient evidence of physical unfitness related to his recurrent major depression, without psychotic features, but it was not yet stabilized to the point that a permanent degree of severity could be determined. The formal PEB recommended his retention on the TDRL with reexamination on 1 June 1994. The applicant concurred. 12. A memorandum for record, dated 25 May 1993, the president of the PEB stated that the applicant was retained on the TDRL based on his testimony that he was going to return to active treatment. He further stated that when the applicant was reevaluated, consideration of the applicant’s failure to follow medical treatment should be given. 13. A NARSUM, dated 11 July 1994, shows: * the applicant underwent his second TDRL reevaluation on the date of the form for his major depression and dependent personality disorder * he was unemployed at the time and continued to experience some symptoms of major depression * he was engaged in psychiatric treatment at the Baltimore VA Medical center, seeing a psychiatrist, Dr. X____ once per month for medication * he retained the same diagnosis * it was not clear if he was fit to return to military service and it was recommended he be retained on the TDRL with reevaluation in approximately 18 months 14. A DA Form 199, dated 29 December 1994, shows: * an informal PEB found the applicant unfit for duty due to recurrent major depression without psychotic features * the PEB recommended his retention on the TDRL with reexamination on 1 July 1996 15. A memorandum from PERSCOM Physical Disability Branch, dated 6 September 1996, informed the applicant that information was received indicating he did not report for his periodic physical examination in July 1996. He was advised if he did not provide an explanation for his failure to report for the examination, no further effort would be made to schedule him, his eligibility to receive Army retired pay would be terminated, and his military identification card would be cancelled. Records shows the applicant missed TDRL medical reevaluation appointments in July, August, and October 1996. 16. On 1 May 1997, the applicant was administratively removed from the TDRL without entitlement to severance pay or placement on the permanent disability retired list due to his failure to complete a scheduled physical reexamination required by law. 17. The applicant provided four letters from attending medical professionals. a. A letter from the VA Maryland Health Care System, Medical Director, Mood Disorders Program, Baltimore VA Medical Center, Doctor X____ X____, dated 8 August 2003, states the applicant was scheduled for a periodic physical examination on 10 December 1996 at Walter Reed Army Medical Center, which he was unable to report to due to severe symptoms of depression, panic attacks, and phobic avoidance behavior that prevented him from leaving him home most of the time. He indicated he would be willing to provide a letter on behalf of the applicant explaining these reasons, but neglected to do so at the time. He is now writing to respectfully request the decision to administratively remove the applicant from the TDRL be reconsidered and his status reinstated, since it was entirely due to his own error in not submitting the required documentation and no fault of the applicant. He has been deprived of benefits to which he would otherwise be entitled, as a result of the doctor’s oversight and it would be unfortunate for him to be penalized for a circumstance beyond his control. b. A letter from the Maryland VA, Mood Disorders Clinic, Nurse Practitioner X____ X____, dated 8 August 2003, states the applicant had been an outpatient at the Baltimore VA Medical Center Mood Disorders Clinic since October 1996. His diagnosis is major depressive disorder, severe, with psychotic features. As a result, his treatment has been intensive and he has been hospitalized on three separate occasions. He missed his final TDRL appointment in 1997 due to his sever symptoms and was unable to reorganize himself until recently to pursue and correct this situation. c. A second letter from the VA Maryland Health Care System, Medical Director, Mood Disorders Program, Baltimore VA Medical Center, Doctor X____, dated 1 July 2004, states he was responding to letter in which concerns expressed by the applicant’s supervisor were conveyed regarding his observation of him having been groggy, inattentive, lethargic and slurring his speech while on duty as an auto technician. He explained the applicant’s medication regimen included Quetiapine, to help him with sleep disturbances, but can cause side effects of daytime sedation and drowsiness. It was suggested he alter the schedule on which he takes the medication to at bedtime. d. A letter from Licensed Certified Social Worker-Clinical, ____, dated 25 March 2017, states he first began treating the applicant about 7 years ago for about 3 years and now he has returned. His diagnosis include bipolar I disorder and PTSD and he has become suicidal. It is his opinion that the applicant’s disability rating with the VA is too low and he should not be working, particularly because the psychotropic medications he takes sometimes render him unable to wake up and focus. 18. The applicant previously applied to the ABMR in 2003 requesting permanent physical disability retirement and after careful consideration of all the evidence, the Board denied his request on 29 September 2005. 19. On 18 December 2017, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. The ARBA medical advisor concluded there is insufficient cause to recommend the applicant’s retirement due to permanent physical disability. The basis for his removal from the TDRL was that the legal processes were followed once he repeatedly missed his TDRL reexamination dates. The applicant cited hospitalization as the reason for missing the appointments, but his medical providers do not say he was unavailable for all the examination dates by reason of hospitalization. It is unknown what the outcome would have been had he kept his final TDRL reexamination appointments, however he was rated as having a 50 percent service-connected disability by the VA including during the period when he did not attend his TDRL reexaminations. A copy of the complete medical advisory was provided to the Board for their review and consideration. 20. The applicant was provided a copy of the advisory opinion on 22 December 2017 and given an opportunity to submit comments. He replied on 21 January 2017, requesting an extension to allow him to provide comments. He did not again respond or provide any further comments. 21. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. These ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). b. Soldiers will be placed on the TDRL when they would be qualified for permanent disability retirement and the preponderance of evidence indicates one or more conditions will change within the next 5 years so as to result in a change in rating or a finding of fit. The Army Disability Evaluation System will re-evaluate each Soldier placed on the TDRL at least once every 18 months. Evaluation may be sooner. Once the PEB finds each condition is stable upon evaluation, the PEB will assign a final rating that includes the ratings for the disabilities determined to be permanent and stable when the Soldier was placed on the TDRL or during preceding TDRL adjudications. When the PEB rates the case, the ratings will be under the VASRD in effect at the time of the current TDRL adjudication. c. A final determination of the case of each Soldier on the TDRL will be made at the latest upon the expiration of 5 years after the date when the Soldier was placed on the TDRL. If, at the time of that determination the physical disability for which the Soldier was placed on the TDRL still exists, it will be considered to be permanent and stable. Placement on the TDRL confers no right to remain on the TDRL for the entire 5-year period. d. If upon reexamination, Soldiers who are not determined fit for duty and meeting medical retention standards for the conditions for which they were placed on the TDRL will be removed from the TDRL and placed on the Permanent Disability Retired List (PDRL). e. Soldiers will be notified of their forthcoming medical reexaminations while on the TDRL. The Medical Treatment Facility will arrange for and schedule the medical reexaminations. Every effort will be made to schedule the examination for the Soldier’s convenience; however, the medical examination must be carried out within the month prescribed. Failure to make or follow through with arrangements with the hospital for carrying out the medical examination during the required month may result in the suspension of disability retirement pay. f. If a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses to complete a medical examination, an effort will be made to discover the reason. If such action cannot be justified and the 5th anniversary of placement on the TDRL has not been reached, retired pay will be suspended and the Soldier’s name will be kept on the TDRL until the 5th anniversary, unless it is removed sooner by other action. 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. If 6 months before the 5th anniversary of placement on the TDRL, all attempts to arrange a final examination have failed and the Soldier does not undergo a physical examination, he/she will be administratively removed from the TDRL on the 5th anniversary of placement on the list without entitlement to any benefits. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board concluded there was insufficient evidence to change the individual record. The ARBA medical advisor concluded there is insufficient cause to recommend the applicant’s retirement due to permanent physical disability. The basis for his removal from the TDRL and the applicant was afforded an opportunity to reply to that finding, but failed to do so. As a result, the Board found a lack of justification to recommend changing the record of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 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. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 2. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. These ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). b. Soldiers will be placed on the TDRL when they would be qualified for permanent disability retirement and the preponderance of evidence indicates one or more conditions will change within the next 5 years so as to result in a change in rating or a finding of fit. The Army Disability Evaluation System will re-evaluate each Soldier placed on the TDRL at least once every 18 months. Evaluation may be sooner. Once the PEB finds each condition is stable upon evaluation, the PEB will assign a final rating that includes the ratings for the disabilities determined to be permanent and stable when the Soldier was placed on the TDRL or during preceding TDRL adjudications. When the PEB rates the case, the ratings will be under the VASRD in effect at the time of the current TDRL adjudication. c. A final determination of the case of each Soldier on the TDRL will be made at the latest upon the expiration of 5 years after the date when the Soldier was placed on the TDRL. If, at the time of that determination the physical disability for which the Soldier was placed on the TDRL still exists, it will be considered to be permanent and stable. Placement on the TDRL confers no right to remain on the TDRL for the entire 5-year period. d. If upon reexamination, Soldiers who are not determined fit for duty and meeting medical retention standards for the conditions for which they were placed on the TDRL will be removed from the TDRL and placed on the Permanent Disability Retired List (PDRL). e. Soldiers will be notified of their forthcoming medical reexaminations while on the TDRL. The Medical Treatment Facility will arrange for and schedule the medical reexaminations. Every effort will be made to schedule the examination for the Soldier’s convenience; however, the medical examination must be carried out within the month prescribed. Failure to make or follow through with arrangements with the hospital for carrying out the medical examination during the required month may result in the suspension of disability retirement pay. f. If a Soldier fails to respond to correspondence concerning the medical examination or fails or refuses to complete a medical examination, an effort will be made to discover the reason. If such action cannot be justified and the 5th anniversary of placement on the TDRL has not been reached, retired pay will be suspended and the Soldier’s name will be kept on the TDRL until the 5th anniversary, unless it is removed sooner by other action. 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. If 6 months before the 5th anniversary of placement on the TDRL, all attempts to arrange a final examination have failed and the Soldier does not undergo a physical examination, he/she will be administratively removed from the TDRL on the 5th anniversary of placement on the list without entitlement to any benefits. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. ABCMR Record of Proceedings (cont) AR20170008411 8 1