ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 February 2020 DOCKET NUMBER: AR20190004117 APPLICANT REQUESTS: To be placed on the Permanent Disability Retirement List (PDRL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Defense Finance and Accounting Service (DFAS) Letter, date 11 April 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was placed on the Temporary Disability Retirement List (TDRL) effective 14 September 1968, but he was never placed on the PDRL. HHe would like to be placed on the PDRL and get a retired identification card. He was never given the opportunity to enroll in the PDRL. If he is entitled to PDRL and have a retired identification card, he would like to receive it. 3. A review of the applicant’s records to include information from the medical evaluation addressed to the ABCMR, dated 17 April 1972 shows: a. 14 September 1966 – he was inducted in the United States Army b. 27 February 1967 – he deployed to the Republic of Vietnam with the Military Occupational Specialty (MOS) 11B10 Light Weapons Infantry c. 24 April 1967 – he suffered wounds to the chest, arms, face and stomach d. 13 May 1967- he was a patient at a general hospital in Japan e. 19 May 1967 – he redeployed as a patient due to injuries sustained f. 22 May 1967- he was a patient at Phoenixville, Pennyslvania g. 10 January 1968 – he was awarded 71B20 Clerk Typist MOS and his combat MOS 11B10 Infantryman was withdrawn h. 13 September 1968 – he was transferred from United States Army to the United State Army Reserve (USAR) i. Special Order 164 dated 24 Augusts 1970 and Memorandum for the Adjutant General shows having approved the findings, conclusions and recommendation of the Army Board for Correction of Military Records and under the provisions of Title 10 USC 1552, it is directed all Department of the Army records of the applicant be corrected to show he was relieved from active duty on 13 September 1968 by reason of physical disability, rated 60 percent disabling under the Veterans Administration Schedule for Rating Disabilities, and placed on the TDRL at the grade of Specialist (SPC)/ E-4 with entitlement to retired pay as of 14 September 1968 under the provisions of Title 10 USC 1202 and 1372. j. 4 January 1971 – he was reevaluated and found medically fit for duty by an examining physician at Philadelphia Naval Hospital. k. 21 June 1971- the medical board at Valley Forge General Hospital found the applicant fit for duty, considered his rebuttal and forwarded their confirmed findings of the applicant’s fitness and forwarded it to the Physical Evaluation Board (PEB). l. August 1971 – an informal review with the PEB found the applicant medically unfit for duty and recommended he be placed on the PDRL with a retirement rating of 50 percent; this was not approved by the Army Physical Review Council (APRC); APRC unanimously recommended the applicant be removed from TDRL and that he was fit for duty. m. 6 October 1971 – a formal PEB was held at Walter Reed Army Medical Center where the applicant appeared in person with legal counsel, a full hearing was done, and the applicant was found fit for duty. n. 28 October 1971 - the applicant was removed from the TDRL per letter order D11-664, dated 16 November 1971. o. 13 September 1972 – per orders number 08-1323145, dated 23 August 1972, the applicant was honorably discharged from the USAR for expiration of term of service. 4. The applicant provides a letter from the Defense Finance and Accounting Service (DFAS) to a United States representative, dated 11 April 2018 which states the applicant was placed on the TDRL effective 14 September 1968 and he could remain on the TDRL for up to five years maximum. There is no record of him being placed on PDRL. They recommend the applicant to apply to the ABCMR to show he was placed on the PDRL to change to his military retired pay records. 5. Department of Defense Directive (DoDD) 1332.18, Part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact that the member’s disability is not determined to be of a permanent nature and stable. 6. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation), paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 7. Title 10, United States Code, Section 1201, provides for the placement of soldiers on the permanent disability retired list (PDRL) who incur a physical disability in the line of duty while serving on active duty over 30 days. However, the disability must have been the proximate result of performing that active duty. Section 1202 of this Code provides for the placement of soldiers on the TDRL if they meet the provisions of Section 1201, but the disability has not yet been determined to be of a permanent nature. However, accepted medical principals must indicate that the disability will become permanent in nature. Sections 1204 and 1205 of this Code provide for the placement of soldiers on the TDRL and PDRL who incur a disability in line of duty while serving on active duty for less than 30 days. These Sections also require that the disability be incurred as the proximate result of performing the active duty. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and the facts above. 2. The Board noted that the applicant was placed on the TDRL by orders effective 14 September 1968. The Board also noted that on 6 October 1971, a formal PEB was held at Walter Reed Army Medical Center where the applicant appeared in person with legal counsel at a full hearing and the applicant was found fit for duty. Accordingly, on 28 October 1971, the applicant was removed from the TDRL by orders D11-664, dated 16 November 1971. This terminated his potential 5 years on the TDRL. The applicant was subsequently honorably discharged from the USAR for expiration of term of service on 13 September 1972 by orders 08-1323145, dated 23 August 1972. 3. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge, and that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Department of Defense Directive (DoDD) 1332.18, Part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact that the member’s disability is not determined to be of a permanent nature and stable. 3. Army Regulation (Disability Evaluation for Retention, Retirement or Separation) 635- 40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 4. Title 10, United States Code, Section 1201, provides for the placement of soldiers on the permanent disability retired list (PDRL) who incur a physical disability in the line of duty while serving on active duty over 30 days. However, the disability must have been the proximate result of performing that active duty. Section 1202 of this Code provides for the placement of soldiers on the TDRL if they meet the provisions of Section 1201, but the disability has not yet been determined to be of a permanent nature. However, accepted medical principals must indicate that the disability will become permanent in nature. Sections 1204 and 1205 of this Code provide for the placement of soldiers on the TDRL and PDRL who incur a disability in line of duty while serving on active duty for less than 30 days. These Sections also require that the disability be incurred as the proximate result of performing the active duty. // NOTHING FOLLOWS // ABCMR Record of Proceedings (cont) AR20190004117 5 1