RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050007703


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge from the New York
Army National Guard (NYARNG) be voided.  In a second application, he
requests that a debt in the amount of $4,018.26 be cancelled and active
duty medical extension (ADME) orders be issued for the period 1 February
through 29 April 2005.

2.  The applicant states he was unjustly or erroneously discharged from the
NYARNG.  On 16 July 2004, a Physical Evaluation Board (PEB) found him to be
not fit.  He did not concur.  He requested continuation on active duty
(COAD) (sic), which was disapproved on 30 November 2004.  He then submitted
supporting documentation to the National Guard Bureau and, on 30 December
2004, his COAD was approved.

3.  The applicant states that, prior to being released from active duty
(REFRAD), he received a physical examination where several line of duty
medical issues that needed to be addressed were noted.  However, his case
manager informed him he (his case manager) was not submitting a request for
ADME.  After being REFRAD, the applicant continued to report for duty at
his home unit and reported to his medical appointments.  His unit submitted
a request for ADME, but he was informed he had been discharged by the ARNG.

4.  The applicant further states he was charged with a debt for $4,018.26
for non-duty performance.  He performed military duty at his home unit from
1 February 2005 through 29 April 2005.

5.  The applicant provides, with his first application, a DA Form 199
(Physical Evaluation Board (PEB) Proceedings); a memorandum from the U. S.
Army Human Resources Command (USAHRC) dated 17 November 2004; a memorandum
from Headquarters, NYARNG dated 17 November 2004; a DA Form 705 (Army
Physical Fitness Test Scorecard); a memorandum from his unit dated 28
December 2004; a memorandum from USAHRC dated 30 December 2004; an undated
memorandum, subject:  Results of Required Medical Examination, with a DD
Form 2807-1 (Report of Medical History), DD Form    2808 (Report of Medical
Examination), DA Form 3984 (Dental Treatment Plan), and DD Form 2216E
(Hearing Conservation Data) attached; a DD Form           214 (Certificate
of Release or Discharge from Active Duty) for the period ending 30 January
2005; REFRAD orders dated 4 February 2005; ARNG discharge orders dated 28
February 2005; a memorandum from USAHRC dated 11 April 2005; and an email
dated 8 May 2005.

6.  The applicant additionally provides, with his second application, three
Chronological Records of Medical Care dated 16 and 23 February 2005 and
23 March 2005; a HealthNet Federal Services letter dated 21 February 2005;
    a DA Form 2173 (Statement of Medical Examination and Duty Status) dated
     22 March 2005 concerning groin pain; a DA Form 2173 dated 22 March
2005 concerning a left knee contusion; a report of operation, date of
operation           11 March 2005; a DA Form 3349 (Physical Profile) dated
11 March 2005; a request for ADME status dated 30 March 2005; a Defense
Finance and Accounting Service (DFAS) account statement dated 9 June 2005;
and a memorandum from his unit dated 23 June 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 25 April 1986.  He was ordered to
active duty for an unknown reason on 4 May 2002 and REFRAD on 3 May 2003.
He was ordered to active duty for an unknown reason on 4 May 2003.

2.  On 16 July 2004, a PEB found the applicant physically unfit due to a
diagnosis of right ankle pain, post Achilles tendon tear with decreased
range of motion with a 10 percent disability rating.  The applicant
nonconcurred; however, his rebuttal is not available.

3.  By memorandum dated 17 November 2004, the applicant received
notification of eligibility for retired pay at age 60 (a Selected Reserve
15-year letter).

4.  By memorandum dated 17 November 2004, USAHRC responded to a request
from the applicant for continuation in the active National Guard by
disapproving his request.

5.  By memorandum dated 28 December 2004, the applicant's battalion S-2
(Intelligence) requested the applicant be retained in the ARNG.

6.  By memorandum dated 30 December 2004, USAHRC, Reserve Component
Personnel Support Services Branch, approved the applicant's request for
continuation in the active National Guard.  The memorandum directed he be
REFRAD with an effective release date not later than 30 January 2005 with a
narrative reason for separation of "Completion of Required Active Service."
 The memorandum also stated the applicant would be retained in a drilling
status in the New York National Guard until he was issued his 20-year
letter in May 2006.

7.  On USAHRC orders dated 7 January 2005, the applicant was ordered to
active duty for 30 days ADME (to end 27 January 2005).

8.  The applicant was REFRAD on 30 January 2005 and transferred to his
NYARNG unit.

9.  USAHRC orders dated 31 January 2005 amended their 7 January 2005 orders
to show the applicant's ADME was to end 13 March 2005.

10.  USAHRC orders dated 9 February 2005 further amended their 7 January
2005 orders to show the applicant's ADME was to end 30 January 2005.

11.  Orders 059-1004, Office of The Adjutant General, Joint Force
Headquarters, Latham, NY dated 28 February 2005 discharged the applicant
from the ARNG effective 30 January 2005 and transferred him to the Retired
Reserve

12.  A DA Form 2173 dated 22 March 2005 shows the applicant experienced
pain in his left knee on 13 September 2004 while performing duty.  A later
examination revealed a contusion to his left knee quadriceps tendon and
physical therapy was ordered.  The injury was considered to have been
incurred in line of duty.

13.  A DA Form 2173 dated 22 March 2005 shows the applicant began
experiencing pain in his lower abdominal area on 12 January 2005 while
performing duty.  A later examination revealed an umbilical hernia, for
which surgery was performed on 11 March 2005.

14.  A DA Form 4817 (Personnel Action) dated 31 March 2005 shows the
applicant requested ADME from 1 February to 17 May 2005.  His battalion S-1
(Personnel) signed the form recommending approval.

15.  By memorandum dated 11 April 2005, USAHRC informed the applicant they
were unable to process his orders for ADME due to insufficient
documentation.

16.  By memorandum dated 18 May 2005, USAHRC disapproved the applicant's
request for continuation in the active National Guard.  This memorandum is
annotated "Corrected Copy."  It cannot be determined what memorandum it
corrected.

17.  On 9 June 2005, DFAS established a debt on the applicant in the amount
  of $4,018.26 to "recoup the period of 05/02/01 to 05/02/30 (sic) due to
non-performance."

18.  By memorandum dated 25 June 2005, the applicant's unit informed the
    U. S. Postal Service the applicant performed military duty at Jamaica
[New York] Armory from 1 February 2005 through 29 April 2005.

19.  An Office of the Army Deputy Chief of Staff, G-1 memorandum dated
      16 September 2002 states that [previously issued] procedural guidance
for Reserve Component (RC) Soldiers on ADME is extended until it can be
included in Army Regulation 135-XX.  RC Soldiers may be retained on active
duty when the injury or illness was occurred in the line of duty and
prevents the Soldier  from performing his or her normal military duty.  The
request will consist of       the member's consent to remain on active
duty, the physician's statement        that medical treatment is required
for more than 30 days, the line of duty determination, and a DA Form 4187
signed by the commander.

20.  The Army Deputy Chief of Staff, G-1 Procedural Guidance for RC
Soldiers on ADME references Title 32, U. S. Code.  The scope of this
guidance includes all RC Soldiers who are on active duty orders or on
inactive duty training and require medical treatment/evaluation for 30 days
or more (inpatient or outpatient), and fall under the rules, regulations,
and specified entitlements for active duty personnel.  This guidance
applies to all RC Soldiers when it is determined they are unable to perform
normal military duties in their military occupational specialty/area of
concentration by a military medical authority.  They shall be retained,
subject to their consent and Department of the Army approval, pending
resolution of their medical condition or completion by the Physical
Disability Evaluation System.  Soldiers eligible for ADME status are those
requiring treatment or evaluation for 30 days or more for an injury,
illness, or disease incurred or aggravated in the line of duty.

DISCUSSION AND CONCLUSIONS:

1.  It appears there may have been a miscommunication between USAHRC and
the NYARNG and between the NYARNG and the applicant's unit concerning the
applicant's medical/retention status.

2.  The applicant incurred two injuries (a knee injury and a hernia) while
he was on active duty, injuries which were later determined to be in line
of duty.

3.  The applicant's complete MEB/PEB packet is not available but it appears
he underwent physical disability processing for an ankle injury for which
he was found to be unfit for duty.  He was to be separated with severance
pay; however, it appears he requested transfer to the Retired Reserve and
was given a 15-year letter.

4.  It appears the applicant should have been discharged from the ARNG
which the Office of The Adjutant General, Joint Force Headquarters, Latham,
NY attempted to do when it discharged him from the ARNG effective 30
January 2005 and transferred him to the Retired Reserve.  However, USAHRC
had directed he be REFRAD and transferred to his ARNG unit.  In addition,
USAHRC issued several orders giving the applicant ADME status.

5.  The applicant provided evidence to show he performed duties with his
unit through 29 April 2005 and had medical treatment for his conditions.
It would be equitable to void the orders discharging the applicant from the
ARNG, show he was given ADME status through 29 April 2005, and discharged
from the ARNG effective 30 April 2005 and transferred to the Retired
Reserve.  Accordingly, based on these corrections the establishment of a
debt in the amount of $4,018.26 was erroneous.

BOARD VOTE:

__lds___  __reb___  __rmn___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that the
state Adjutant General correct the ARNG records of the individual concerned
and directs that, when appropriate, the Department of the Army records of
the individual concerned, which are in fact Reserve of the Army records, be
corrected by:

     a.  voiding Orders 059-1004, Office of The Adjutant General, Joint
Force Headquarters, Latham, NY dated 28 February 2005 discharging the
applicant from the ARNG effective 30 January 2005 and transferring him to
the Retired Reserve;

     b.  showing he was given ADME status from 31 January 2005 through
29 April 2005; and

     c.  showing he was discharged from the ARNG effective 30 April 2005
and transferred to the Retired Reserve, thereby making his debt of
$4,018.26 for nonperformance erroneous.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007703                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060112                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |135.03                                  |
|2.                      |128.10                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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