SUPPLEMENTAL RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	   03 MARCH 2005
	DOCKET NUMBER:  AR20050001090 


	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.  A quorum was present during the further consideration and deliberation.  The findings appearing in proceedings dated 
23 October 2003 were affirmed.  The following additional findings, conclusions, and recommendations were adopted by the Board.


Mr. Carl W. S. Chun

Director

Mr. Kenneth H. Aucock

Analyst

	The Board convened at the call of the Director on the above date to reconsider the conclusions and recommendation appearing in proceedings dated 23 October 2003.


Mr. Fred Eichorn

Chairperson

Ms. Margaret Patterson

Member

Ms. Carol Kornhoff

Member

	The Board considered the following additional evidence:

	











CONSIDERATION OF ADDITIONAL EVIDENCE:

27.  In a 9 November 2004 letter the applicant took issue with the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002081765, dated 23 October 2003, requesting reinstatement to active duty retroactive to the date of her discharge [1 February 2002], with the restoration of all pay, allowances, benefits and entitlements.  She stated that she was finally afforded a medical evaluation in August 2004.  Reinstatement will allow TRICARE to cover and reimburse the continually mounting medical expenses which resulted from the injury while on active duty.  She states that she has permanent nerve damage.  She states that the ABCMR in its decision concluded that she should have been retained on active duty to receive a medical evaluation and should now be afforded that opportunity, and that by rescinding her discharge she will be able to get pay to cover her expenses in going to the boards.  She states that restoration of all pay and allowances, benefits, and entitlements retroactive to February 2002 will allow her to recoup money that she had to spend because she was unable to return to her profession [because of her injuries], and will allow TRICARE to cover her medical expenses.      

28.  On 9 February 2005 new information was received from the United States Army Physical Disability Agency in regard to the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002081765, dated 23 October 2003.  The evidence submitted consists of:

	a.  Medical Evaluation Board Proceedings dated 27 September 2004 which show that she was referred to a Physical Evaluation Board (PEB) because of her medical condition – cervical fusion, slight and frequent pain.  

	b.  Physical Evaluation Board Proceedings, dated 8 November 2004 which determined that her condition – chronic neck pain, status post cervical fusion, without significant neurologic abnormality; combined cervical range of motion   270 degrees; made her physically unfit, recommending a disability rating of       10 percent.  The applicant did not concur and demanded a formal hearing.   

	c.  Formal PEB Proceedings, dated 31 January 2005 which determined that she was fit for duty within the limitations of her profile.  The PEB stated that she had no neck pain subsequent to her cervical fusion, and that her left upper extremity dysesthesias was not separately unfitting since she was able to compensate quite well in her job.  The PEB stated that although the rheumatoid arthritis required medication to control, she was able to perform her job, and that inability to perform the APFT (Army Physical Fitness Test) or inability to deploy were not sole reasons for an unfit determination.  The PEB indicated that the applicant’s MEB was initiated at the directive of the ABCMR.  The PEB found the applicant physically fit, recommending that she be returned to duty as fit.  The applicant concurred.  The PEB proceedings were approved on 4 February 2005. 

ADDITIONAL DISCUSSION AND CONCLUSIONS:

6.  At the time of the decision of the ABCMR in Docket Number AR2002081765, dated 23 October 2003, it was the intent of the ABCMR to make the applicant’s record as administratively correct as it should properly have been at the time.

7.  In making its decision the ABCMR stated that she should have been retained on active duty in order to receive a medical evaluation to determine her fitness for retention in the Army; and because that did not happen, she should be afforded that opportunity – the intent being not to return her to active duty, but to have her medically evaluated, and if necessary consideration by a MEB and PEB.  The Board specifically stated that at that time it was inappropriate to grant her request to return her to active duty retroactive to 23 January 2002.

8.  In so doing, the Board understood that her medical evaluation would be soon forthcoming subsequent to the 23 October 2003 decision.  The Board did not realize that the applicant’s case would not be resolved for more than 15 months, a completely unsatisfactory delay, considering the fact that she applied for relief in October 2002, after having been released from active duty on 23 January 2002, and discharged from the Army Reserve on 1 February 2002 without benefit of a fitness for duty evaluation – an evaluation which this Board determined that she should have had.  

9.  In her recent request to this Board, on 9 November 2004, prior to the determination made by the 31 January 2005 PEB, the applicant made mention that reinstating her to active duty retroactive from 1 February 2002, the date of her discharge, to the present time, would allow TRICARE to “cover and reimburse the continually mounting medical expenses which have resulted from the injury while on active duty.  The result being I have permanent nerve damage.”  

10.  The Board also, in deciding her case, determined that her claimed medical expenses might be contingent upon a determination of her fitness for retention in the Army, and that subsequent to this determination she should reapply to this Board concerning reimbursement of any medical expenses she felt that she was entitled to.  The applicant’s claimed medical expenses resulting from her motor vehicle accident on 28 July 2001, could not be determined from the evidence she provided to the 23 October 2003, nor and in spite of the 23 October 2003 Board proceedings, should it.  The Board is not in a position to adjudicate her claimed medical expenses.  In this respect, following the decision of this Board, the applicant should contact the TRICARE office nearest where she lives, for information and advice concerning any medical expenses she feels due her.  

11.  Nonetheless, in order to satisfactorily resolve this case, as a matter of fairness to the applicant, it would be appropriate and just to make up for the approximately 15 months’ unfortunate delay from the 23 October 2003 Board decision to the resolution of her physical fitness status by the PEB, the proceedings of which were approved on 4 February 2005.    

12.  Consequently, the applicant’s records should be corrected to show that her discharge from the Army Reserve on 1 February 2002 is revoked, is null and void and of no force or effect.  Her records should be then corrected to show that she continued on active duty in an ADME status from 23 January 2002 until 4 May 2003, to compensate her for the delay in resolving her case.  In this respect, Orders Number A-10-002142, dated 19 October 2001, published by the Total Army Personnel Command at St. Louis should be amended to continue her period of active duty until 4 May 2003.  She should then be discharged from the Army Reserve on 5 May 2003, with the reason for her discharge commensurate with the reason she was discharged on 1 February 2002.  

13.  The applicant, however, in agreeing with the PEB decision that she should be “returned to duty as fit” appears to be under the misconception that she will be reinstated in the Army immediately, retroactive to 1 February 2002.  This is not the case.  The applicant’s medical evaluation, MEB and PEB proceedings are considered to be proceedings that should have occurred prior to her discharge on 1 February 2002 and the results are not license to return her to active duty.  She was discharged on 1 February 2002, as she herself acknowledged, because she was a two-time non-select for promotion to major.  That discharge is yet true, the date being extended only for the reason indicated above.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__FE ___  ___MP __  ___CK __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the decision of the Army Board for Correction of Military Records set forth in Docket Number AR2002081765, dated 23 October 2003, to show:

a.  that the applicant’s discharge from the Army Reserve on 1 February 2002 is revoked, is null and void and of no force or effect; 

b.  that the applicant continued on active duty in an ADME status from     23 January 2002 until 4 May 2003; 

c.  that Orders Number A-10-002142, dated 19 October 2001, published by the Total Army Personnel Command at St. Louis should be amended to continue her period of active duty until 4 May 2003; and  

d.  that she be discharged from the Army Reserve on 5 May 2003 with the reason for her discharge commensurate with the reason for her discharge on      1 February 2002.




______Fred Eichorn_________
          CHAIRPERSON




INDEX

CASE ID
AR20050001090 
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050303
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY

ISSUES         1.
110.03
2.

3.

4.

5.

6.