PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 January 2003
         DOCKET NUMBER: AR2002077835


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Yolanda Maldonado		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his records be corrected to show he stayed on active duty until 30 May 2002, was transferred to the Individual Ready Reserve on 31 May 2002, and was retired on 1 June 2002. He requests all due pay and allowances as a result of this correction. He also requests that he be paid for 60 days of accrued leave.

3. The applicant states that 30 March 2002 was his scheduled separation date. However, he had medical problems and was scheduled for knee replacement surgery in January 2002. After his surgery on 7 January 2002, he was placed on 30 days convalescent leave. At that time his unit submitted a request for extension on active duty. He continued to serve on active duty until 10 May 2002 during which time he performed his normal duties to include going on temporary duty (TDY) to Edison, NJ. The request for extension was disapproved and he was ordered to report to the Transition Point. The Transition Point backdated his DD Form 214 (Certificate of Release or Discharge from Active Duty) as they were unable to obtain an amendment to his orders.

4. The applicant’s military records are unavailable. Information contained herein was obtained from alternate sources.

5. The applicant was born on 24 March 1940. After having had over 30 years of prior service, he entered active duty as a U. S. Army Reserve Active Guard/Reserve (AGR) Chief Warrant Officer Four.

6. U. S. Army Reserve Personnel Command (AR-PERSCOM) orders C-11-701821, dated 1 November 2001, released the applicant from active duty and assigned him to the U. S. Army Reserve Control Group (Reinforcement) effective 30 March 2002.

7. AR-PERSCOM orders C-11-132178, dated 8 November 2001, assigned the applicant to the Retired Reserve effective 1 April 2002.

8. On 7 January 2002, the applicant underwent total knee arthroplasty of the left knee. A Medical Evaluation Board Summary noted, in Disposition/Recommendations, that the applicant met the current medical retention standards for joint arthroplasty without severe pain, limitation of motion and of function.

9. By memorandum dated 25 February 2002, the applicant's surgeon requested
the applicant be medically extended beyond his separation date of 30 March 2002. The applicant was scheduled for post-op follow-up in June 2002.

10. By memorandum dated 28 February 2002, the applicant's brigade commander requested, through the Office of the Surgeon General to AR-PERSCOM, that the applicant be extended past his separation date, to on or about 30 July 2002, for medical rehabilitation.

11. A DD Form 1610 (Request and Authorization for TDY Travel of DOD Personnel) and a DD Form 1351-2 (Travel Voucher or Subvoucher) shows that the applicant was TDY from his active duty assignment on 17 and 18 April 2002.

12. By memorandum dated 1 May 2002, the Office of the Surgeon General advised AR-PERSCOM that they could not recommend retention of the applicant as the Narrative Summary provided by his surgeon indicated he met medical retention standards.

13. The applicant's DD Form 214 shows he was released from active duty on 30 March 2002 and that he was paid 60 days of accrued leave.

14. Records at the Defense Finance and Accounting Service (DFAS) show the applicant was originally due to be paid 60 days accrued leave when they believed his separation date was 15 April 2002. When DFAS received notice that he separated on 30 March 2002, a recomputation of his leave showed he had accrued only 59 days.

15. The adjutant of the applicant's last Reserve unit stated by email on 12 December 2002 that he believed the applicant left active duty on or about 10 May 2002. The adjutant believed it was the command's intention that the applicant's medical problems be taken care of while on active duty. Due to a paperwork problem at the Office of the Surgeon General, the applicant did not retire on the effective date listed on his DD Form 214. (A copy of this email statement was provided to the applicant for comment. He did not respond within the given time frame.)

16. Title 10, U. S. Code, section 1164(1), states that a warrant officer shall be retired or separated not later than 60 days after the date when he becomes 62 years of age. Section 1164(2) states that the Secretary concerned may defer, for not more than 4 months, the separation of any warrant officer if, because of unavoidable circumstances, evaluation of his physical condition and determination of his entitlement to retirement or separation for physical disability require hospitalization or medical observation that cannot be completed before the date he would otherwise be required to be retired or separated.

17. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that a soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.
18. Army Regulation 635-5 (Leaves and Passes) states that leave is credited at the rate of 2 and one-half days for each month of active duty. Since 10 February 1976, members can receive accrued leave payment for no more than 60 days during a military career.

CONCLUSIONS:

1. The Office of the Surgeon General properly advised AR-PERSCOM that they could not recommend retention of the applicant. A soldier may be retained beyond scheduled separation until he or she has attained maximum hospital benefits and completion of disability revaluation if otherwise eligible for referral into the disability system. However, the applicant was no longer hospitalized (follow-up care could have been provided by a Department of Veterans Affairs facility) and he was not eligible for referral into the disability system as his surgeon stated he met the standards for retention.

2. Nevertheless, the applicant continued to serve on active duty until on or about 10 May 2002. It would be equitable to amend his release from active duty orders and his DD Form 214 to show he was released from active duty on 10 May 2002. There is no evidence to show he served on active duty after 10 May 2002. It would also be equitable to amend his assignment to the Retired Reserve orders to show he was assigned to the Retired Reserve on 11 May 2002.

3. In addition, it would be equitable to pay the applicant for one additional day of accrued leave (for a total of 60 days).

4. In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. amending AR-PERSCOM orders C-11-701821, dated 1 November 2001, to show the applicant was released from active duty and assigned him to the U. S. Army Reserve Control Group (Reinforcement) effective 10 May 2002;

b. amending the applicant's DD Form 214 for the period 14 July 1996 through 30 March 2002 to show he was released from active duty on 10 May 2002 with appropriate changes to item 12c (Net Active Service this Period); and

c. amending AR-PERSCOM orders C-11-132178, dated 8 November 2001, to show the applicant was assigned to the Retired Reserve effective 11 May 2002.
2. That the applicant be paid any due pay and allowances, to include accrued leave, as a result of the above corrections.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__WTM__ __CJP _ __YM __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _ _Walter T. Morrison_ __
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077835
SUFFIX
RECON
DATE BOARDED	2003/01/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	PARTIAL GRANT
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.