IN THE CASE OF: BOARD DATE: 18 June 2021 DOCKET NUMBER: AR20200002039 APPLICANT REQUESTS: in effect, placement on the Permanent Disability Retired List (PDRL) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation) from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge) * U.S. Army Human Resources Command (AHRC) Orders D264-05, dated 21 September 2005 * TRICARE Explanation of Benefits, dated 8 August 2019 * Department of Veterans Affairs (VA) Decision Review Officer Decision, dated 27 August 2019 * applicant’s FAX to Department of Defense Manpower Data Center (DMDC), dated 12 December 2019 * TRICARE letter, dated 10 December 2019 * TRICARE letter, dated 11 December 2019 * DMDC letter, dated 16 December 2019 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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’s complete military service record is not available to the Board for review. A request was made of the National Personnel Records Center (NPRC) to obtain the applicant’s service record, but his records were unavailable. His case is being considered using the available evidence provided by the applicant. 3. The applicant states: a. His final military disability retirement date was never issued nor were any letters of pending procedures or exams, for the purpose of awarding him a higher military disability retirement, ever delivered to him. He never received any letters regarding intent to undergo examination or to award him a permanent disability retirement. b. He has been removed from the Temporary Disability Retired List (TDRL) and Defense Enrollment Eligibility Reporting System (DEERS) status without prior notifications and without just cause. While in the DEERS office in November 2019, he was given a copy of a letter from the Secretary of the Army (SA), dated 21 September 2005, informing him he was removed from the TDRL on 15 May 2001. Neither he nor any members of his family had previously received this letter or any other documentation stating he was pending removal from or reevaluation of his military retirement status. c. It appears he should have undergone several military examinations regarding his service-connected injuries and conditions prior to his removal from the TDRL. Additionally, his DD Form 214 is still showing his type of separation to be temporary disability retirement. If not for a pending medical bill denial, he would still be clueless as to his removal from the TDRL. d. He was recently awarded a total permanent VA disability rating of 100 percent for his service-connected traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD). He would still like to receive and continue with his military medical retirement and TRICARE medical coverage, which he would still have had he not been removed from DEERS. He is only seeking reinstatement of his military disability retirement status to allow himself and his children to continue on the TRICARE military medical coverage plan. e. According to the letter he received in November 2019, he failed to complete a required scheduled physical reexamination, thus his TDRL removal. This decision should be vacated and re-adjudicated as he never received this notice or request for physical reexamination. His removal is based on a 5-year maximum tenure on the TDRL, which in and of itself should have triggered a more complete attempt to make sure he was notified of the military’s intentions to review his disability retirement status. His TBI and PTSD and other service-connected injuries should have been recognized as important, so as to not cause other severe medical hardships to himself and his children. He hopes this issue can be corrected without any additional proceedings. 4. The applicant enlisted in the Regular Army on 23 June 1994. 5. The applicant’s Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) documentation are not in his available records for review. 6. The applicant’s DD Form 214 shows he was honorably retired on 15 May 1996, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to temporary disability. He was credited with completion of 1 year, 10 months, and 23 days of net active service. 7. AHRC Orders D264-05, dated 21 September 2005, shows the applicant failed to complete a scheduled physical reexamination required by law. Because of this, he was administratively removed from the TDRL effective 15 May 2001. His removal was based upon failure to comply and a 5-year maximum tenure on the TDRL. 8. A handwritten note on the top of the orders, written by the applicant, states he was given this “letter” while at the DEERS office in November 2019. 9. A TRICARE Explanation of Benefits, dated 8 August 2019, provides a summary of claims processed on 5 August 2019, the date of services being 9 July 2019. It shows TRICARE paid the service provider and the applicant did not owe any amount. 10. A VA Decision Review Officer Decision, dated 27 August 2019, shows the VA granted the following: * service-connection for left wrist keloid scar with an evaluation of 0 percent effective 6 June 2013 * entitlement to individual unemployability effective 2 August 2007 * entitlement to an earlier effective date for the grant of eligibility to Dependents’ Educational Assistance, with a new effective date of 2 August 2007 * this document does not reflect the applicant’s combined VA service-connected disability rating nor the conditions which are deemed service-connected 11. The applicant provided a copy of a fax he sent to the DMDC and DEERS offices on 12 December 2019, wherein he states: a. He needed a letter verifying he was removed from his military disability medical coverage under TRICARE since 2001, in order to appeal his improper removal without prior notification or due process. He never received notification of his removal in 2001. He only recently learned of his removal from the TDRL when payment of a medical bill was denied. That is when he tried to apply for his military identification card and found out why he was removed from DEERS. b. After contacting the DEERS office in November 2019, he was informed of his removal and given a letter stating the only documentation DEERS had was a letter sent to him back in 2001, requesting an examination. He never previously received this letter up until November 2019. c. He is 100 percent disabled with a TBI and has every intention of finding out why he was dropped from the TDRL and taken off his TRICARE medical coverage without ever being informed of a change to his military retirement status. This is an error of great magnitude which is of great concern to him. He has reached out to several military personnel at the DEERS office, both in person and on the phone, and they all state they do not know why he was removed and anyone who would have knowledge of this is long gone. d. He prays this can be corrected now and if not then the ABCMR will have to adjudicate his case and make him whole by correcting this grave injustice. He was very satisfied with his TRICARE medical coverage and prefers to have his coverage reinstated. 12. The applicant provided two TRICARE letters addressed to him, dated 10 and 11 December 2019, wherein he was informed that the claims processor for TRICARE for Life beneficiaries listed multiple claims for medical services he received for which TRICARE was requesting a refund from the providers. 13. A DMDC letter to the applicant, dated 16 December 2019, states the following: a. The DMDC Support Office was responding to the applicant’s inquiry regarding his eligibility for TRICARE administered programs. A review of DEERS reflected the applicant was previously enrolled in one of the TRICARE administered programs from 23 June 1994 through 15 May 2001. b. This letter could be used as proof of prior enrollment under a TRICARE administered program. 14. In the adjudication of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) on 16 March 2020, which states the following: a. The applicant’s request that his disability separation be changed to a permanent disability retirement was found to be legally insufficient. b. The applicant was found medically unfit for continued military service and placed on the TDRL on 16 May 1996. Soldiers on the TDRL are required to complete periodic physical examinations to monitor the stability of the condition(s) which placed the Soldier on the TDRL. Upon placement on the TDRL, Soldiers are informed of requirements for TDRL status. After repeated attempts to contact the applicant to schedule his reexamination and scheduling examinations, the USAPDA office informed the applicant via the available contact information of the possibility of his status on the TDRL being terminated. After his initial re-examination, the applicant was retained on the TDRL as his condition was not stable enough for a final disposition. He was scheduled for a re-examination in 2003. His condition was deemed to be stable enough for a final adjudication and he was given a disposition of separation with severance pay at the disability rating of 10 percent. However, after an informal reconsideration of his returns, the case was returned for additional behavioral health examinations. The applicant filed to show for the subsequent appointments and he was ultimately administratively terminated for non-compliance for failure to report for his examinations. c. The applicant opines he was not told of his retirement status nor given the opportunity to have his periodic re-examinations. He states he was not aware his retirement status ended until he received a medical bill. The USAPDA has documented their attempts to have the applicant attend a periodic examination. He was aware of the need to have an examination and provided with the means to contact the USAPDA to update his contact information in order to schedule his re-examination. d. The USAPDA research of the applicant’s Physical Evaluation casefile illustrates not only multiple attempts to schedule the applicant for his re-examination, but the PEB’s recommended findings of separation with severance pay, which may have been changed had the applicant attended the required re-examination. Under applicable law at the time, Soldiers were authorized to stay on the TDRL for 5 years, regardless of their compliance with TDRL rules. Due to a lack of follow-up medical examination, the USAPDA’s only recourse was to terminate his case. For the reasons stated above, the USAPDA’s decision was neither capricious, arbitrary, nor in violation of any regulation, statute, or law, and the applicant’s claim is deemed to be legally insufficient. 15. The applicant was provided a copy of the USAPDA advisory opinion on 16 April 2020 and given an opportunity to submit comments, but he did not respond. 16. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 17. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 18. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, a medical review, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board concurred with the findings and recommendation of the advising official. The Board determined there is insufficient evidence that shows there was an error or an injustice with the applicant’s status after he was discharged with severance pay. 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states 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. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. Paragraph 3-5 states 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). (1) The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. (2) There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. d. 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. e. The Temporary Disability Retired List (TDRL) is used in the nature of a “pending list.” It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him/her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. f. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his/her office, grade, rank, or rating at the time of the evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service. In addition, the condition must be determined to be temporary or unstable. g. 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. Soldiers who fail to complete a physical examination when ordered will have their disability pay suspended. h. 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. i. If upon reexamination, Soldiers whose disabilities have stabilized and 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 PDRL if the physical disability rating remains 30 percent or greater. If upon reexamination, the Solider is found unfit for duty and not meeting medical retention standards but the stabilized physical disability percentage is rated at below 30 percent, the Soldier will be removed from the TDRL and separated with severance pay if the Soldier has less than 20 years of active Federal service. j. Soldiers failing to undergo a physical re-examination as ordered, will be administratively removed from the TDRL on the 5th anniversary of placement on the list without entitlement to any of the benefits provided by Title 10, U.S. Code, section 61. A Soldier’s eligibility to receive disability retirement pay after failure to report for and complete the required periodic examination may be restored if the Soldier later satisfactorily meets the examination requirements and is still qualified for retention on the TDRL. A Soldier’s eligibility to receive retired pay may be made retroactive, not to exceed 1 year, if the Soldier can show just cause for failure to respond to official notice or orders. 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. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions state a DD Form 214 will not be prepared for Soldiers removed from the TDRL. 5. Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002039 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1