RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 September 2005
      DOCKET NUMBER:  AR20050012332


      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:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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:

     a.   his records be corrected to show he was retained on active duty
due to sanctuary and given a 20-year length of service retirement;

     b.  in the alternative, his records be corrected to show he was
retained on active duty due to sanctuary and given a medical retirement on
an appropriate date determined by the Army Board for Correction of Military
Records (ABCMR);

     c.  his DA Form 2173 (Statement of Medical and Line of Duty Status)
initiated on 20 December 1994 be corrected to delete the determination
"phase of life problem" and a mention that his "…financial situation
improved…" while he was on that period of duty";

     d.  his line of duty (LOD) determinations be changed to attribute his
condition to the severe stress of a financial situation in which the
Defense Finance and Accounting Service (DFAS) deducted funds from his pay
and submitted them to the Internal Revenue Service (IRS);

     e.  the basis of authority of his active duty for special work (ADSW)
orders be changed from Title 32, U. S. Code to Title 10, U. S. Code;

     f.  compensation due from all requested corrections; and

     g.  a waiver of the requirement to exhaust administrative remedies
regarding appealing the results of the formal LOD.

2.  The applicant states he was erroneously released from active duty at
the expiration of his ADSW tour with the National Guard Bureau (NGB) on
         29 September 1994 because he had more than 18 years of active
service.

3.  The applicant states during his last period of active duty he suffered
a severe financial setback that he feels was the main cause of the onset of
his post-traumatic stress disorder (PTSD) that was later diagnosed by the
Department of Veterans Affairs (DVA).  Everyone, except Major P___, the
2005 investigating officer, and Mr. M___ in the 2005 advisory opinion,
stated the root of his problems has always been the garnishment of wages by
the IRS.  In truth, the IRS was very understanding of his situation and
cooperative and removed the garnishment action.  His distress was caused by
the way finance personnel handled his requests with an attitude of "We did
our job and this is your problem so go see the IRS."
4.  The DA Form 2173 was initiated in and completed by the office to which
he was assigned when it should have been completed by the unit to which he
was attached for administration, Headquarters Company, U. S. Army at Fort
Myer, VA.  The 1994 and subsequent determinations of his mental state
erroneously assumed he entered that tour destitute and his active duty pay
for the period vastly improved his lot.  He knew of the levy against him
and soon got the levy removed.  The IRS faxed the release to DFAS in late
August 1994, but for some reason DFAS continued to deduct funds from his
pay.  That put him in severe financial straits for the next several weeks.


5.  The applicant states his original ADSW orders incorrectly cited Title
32, U. S Code, section 502(f) as the authority in support of the Military
District of Washington (MDW) when it should have cited Title 10, U. S.
Code, section 672(d) (later changed to section 12301(d)) in support of the
NGB.

6.  The applicant provides the NGB's 29 July 2005 advisory opinion; a
corrected copy of his Retirement Points Accounting Management System
retirement points statement; the 2005 LOD with related documents; and a
partially cutoff web-page extract regarding the Diagnostic and Statistical
Manual of Mental Disorders, fourth edition (DSM-IV) V-codes related to
phase of life problems, symptoms, and treatments.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 26 September 1945.  He enlisted in the
Regular Army on 28 June 1963.  He was honorably discharged from the Regular
Army on 21 November 1979 with severance pay as the result of being
physically unfit for continued service (low back pain).

2.  On 16 January 1986, the applicant enlisted in the ARNG with assignment
to the District of Columbia ARNG (DCARNG).  He was promoted to Sergeant
Major, E-9 effective 12 April 1992.

3.  Headquarters, District of Columbia National Guard Orders 100-21, dated
    23 July 1994, ordered the applicant to ADSW for the period 22 July 1994
to      29 September 1994 in a Title 10 status for the purpose of providing
support to MDW and to report to the ARNG Readiness Center in Arlington, VA.
 Title 32,    U. S. Code, section 502(f) was cited as the authority for
that action.

4.  A Form 668-D (Release of Levy/Release of Property from Levy) dated
     26 August 1994 showed the IRS released the applicant from a previously-
imposed levy of all wages, salary and other income then owed or becoming
owed to him.
5.  A memorandum dated 2 September 1994 showed DFAS collected a payment of
$1,238.13 from the applicant's end-of-month August 1994 pay and sent it to
the IRS.  Immediate relief in the form of Army Emergency Relief financial
assistance was requested.  The result of this request is not available.

6.  A Standard Form 513 (Consultation Sheet) dated 19 October 1994 shows a
Medical Corps Captain requested a consultation for the applicant to be
conducted by the DVA.  The reason for the request for consultation stated
that, essentially, the applicant had 2 months of frustration, despair, and
anxiety regarding financial concerns/housing.  The Consultation Sheet
indicated he was followed in Outpatient Psychiatry from 19 September to 14
October for grief therapy/crisis and he was prescribed medication for
insomnia.  It requested reevaluation for continuing grief therapy/crisis
adjustment disorder with multiple emotional features and secondary
depression.

7.  The Standard Form 513 showed the consultation was performed on
      21 October 1994 at a DVA medical facility.  At the end of the
consultation, the examining psychiatrist wrote the words, "depression,
PTSD, refer to Dr. (name omitted) for possible psychotherapy" and
prescribed Prozac and Trazadone.

8.  Item 10 (Nature and Extent of Injury, Disease) of a DA Form 2173
initiated on 20 December 1994 indicated the applicant was evaluated for a
"disease" identified as a "Phase of Life Problem."  Item 11d indicated a
medical opinion the applicant's injury was not incurred in the line of duty
and the basis for that opinion was listed as, "Financial problems prompting
him (the applicant) to seek care existed prior to active duty period and
actually improved while on active duty."  Item 15 (Details of the Accident
or History of the Disease) contained the entry, "Emotional concerns were
precipitated by financial problems which started the first day of July
1994, prior to start of active duty service."  Item 15  (Details of
Accident or History of Disease (how, where, when)) indicated, "Emotional
concerns were precipitated by financial problems which started the first of
July 1994, prior to start of active duty service."

9.  A Colonel identified as the unit commander or unit advisor signed the
DA Form 2173 on 4 January 1995 and indicated a formal line of duty
investigation was not required and the injury was not considered to have
been incurred in the line of duty.  The LOD findings were approved on 2
February 1995 by the Director of Personnel, DCARNG.

10.  A DVA Psychological Assessment with a date of report of 17 April 1995,
conducted by Doctor VM, made reference to an evaluation conducted in
November 1994.  Doctor VM noted in this evaluation, in part:

      "The results of the present assessment reveal an acknowledgement of a
significant level of distress including symptoms of anxiety, depression,
and somatic preoccupation.  He manifests a mixed personality style
comprised of Avoidant, Passive-aggressive and Self-defeating components.
He also acknowledges Schizoid and Dependent tendencies.  Furthermore, this
patient endorsed symptom clusters that characterize Schizotypal and
Borderline pathologies as well as major Depression and an unspecified
thought disorder."

11.  A memorandum dated 10 June 1995 indicated the applicant had been
excused from attending required training assemblies since November 1994.
His personal physician requested he be excused due to [his] physical and
mental condition during October through December 1994.  Subsequently, he
was hospitalized in January 1995 and was currently still hospitalized and
not fit for duty.  Therefore, he would be transferred to the Inactive
National Guard.  On orders dated 11 July 1995, the applicant was
transferred to the Inactive National Guard – District of Columbia effective
25 May 1995.  (Those orders were revoked on orders dated 6 June 2003.)

12.  In a 29 August 1995 DVA rating decision, the applicant was granted
service connection for PTSD at the 50 percent rate effective from 30
December 1994.  Combined with a prior 20 percent evaluation for recurrent
low back pain with muscle spasms effective from 24 September 1981, he was
granted a combined rating of 60 percent effective from 30 December 1994.  A
20 October 1995 DVA rating decision increased his PTSD rating to 100
percent effective from 1 May 1995.  The rating decision noted the applicant
had been admitted on 5 May 1995 for alcohol dependence and PTSD.  He
indicated he had been homeless and jobless since 29 September 1994.  He
indicated he used alcohol to fall asleep due to nightmares of Vietnam.  He
had intrusive thoughts and flashbacks and persistent nightmares.  He had
guilty feelings about war.

13.  On orders dated 9 January 1996, the applicant was discharged from the
ARNG and assigned to the U. S. Army Reserve Control Group (Retired)
effective 1 January 1996.

14.  The applicant's notification of eligibility for retired pay at age 60
(his 20-year letter) is dated 21 January 1996.

15.  Headquarters, District of Columbia National Guard Permanent Orders 21-
21 dated 12 August 1996 awarded the applicant the United States Meritorious
Service Medal for exceptional meritorious service while serving in
positions of great responsibility during the period 28 June 1963 to 24 May
1995.

16.  An ARNG Current Annual [Retirement Points] Statement dated 1 June 2005
shows the applicant had completed 18 years, 3 months, and 26 days of active
duty as of 29 September 1994.

17.  A formal LOD was conducted in April 2005.  The investigating officer
noted in item 10a(4) (How sustained) of the DD Form 261 (Report of
Investigation Line of Duty and Misconduct Status), "Mental Stress,
Financial, Death of Spouse," noted in item 10b (Medical Diagnosis), "Mental
Post traumatic," and noted in item 10g (Remarks) that the applicant needed
to seek continuous medical care for his illness.  The investigating officer
found the illness to have been incurred in the line of duty.

18.  On 21 May 2005, the appointing authority (Headquarters, DCARNG) and
the reviewing authority (NGB) disapproved the findings of the investigating
officer.  Both found there was no evidence to substantiate the LOD findings
made by the investigating officer.  Item 21 (Approving authority – reasons
and substituted findings) contained the entry, "APPROVED NOT IN LINE OF
DUTY – NOT DUE TO OWN MISCONDUCT for post traumatic stress disorder."
There was also a note that, after extensive review by the staff of the
Office of The Surgeon and Judge Advocate, NGB, nothing was found to support
PTSD upon entrance to active duty in July 1994.  All evidence pointed to an
elevated anxiety due to a personal monetary problem about the time ordered
to active duty.

19.  The applicant will become eligible for a nonregular retirement when he
turns age 60 on 26 September 2005.

20.  An advisory opinion on this case was prepared by the NGB.  The
advisory opinion noted, in part:

      (1) The ARNG Current Annual Statement [of retirement points] dated
   1 June 2005 shows the applicant was credited with 18 years, 1 month, and
       23 days of active duty when he entered his ADSW tour on 22 July
1994.  Therefore, when he entered the ADSW tour he either was, or should
have been considered to be, covered by the sanctuary provisions of Title
10, U. S. Code, section 12686(a) and should not have been released from
active duty on           29 September 1994 as stated in the self-
terminating orders unless he waived sanctuary.

     (2) Headquarters, District of Columbia National Guard Orders 100-21
dated 23 July 1994 ordering the applicant to ADSW at the NGB was improper
in its purpose and the authority cited, and the ending date was
questionable.  The applicant was ordered to report to the ARNG Readiness
Center on 22 July 2004. The purpose clearly established that tour should
have been ordered under Title 10, U. S Code although it erroneously stated
it was "in support of MDW."  The ARNG Readiness Center is a Field Operating
Activity of the NGB, and thus, Headquarters, Department of the Army.  The
authority should have read "Title 10 USC 672(d)."  The advisory opinion
noted that this citation was later re-codified in Title 10, U. S. Code as
section 12301(d).

      (3) The LOD on the DA Form 2173 initiated on or about 20 December
1994 and signed on 4 January 1995 does not appear adequate to the standards
and requirements for LODs on Soldiers on ADSW at the NGB.  The applicant's
first apparent onset of PTSD was at his medical appointment on 19 September
1994, almost two months after starting his ADSW tour.  The applicant was
subject to an IRS levy, which the IRS released on 26 August 1994.  However,
DFAS had already deducted $1,238.13 from his 31 August 1994 pay for the IRS
and told the applicant he would have to apply to the IRS to have those and
other funds returned to him.  His financial situation was far from improved
during his period of ADSW as stated in the LOD.  The LOD investigations all
seem to report the applicant suffered from PTSD before he entered the ADSW
tour, but the first report of contact with health care providers for the
condition appears to be        19 September 1994.  Since the incident
occurred while the applicant was in a Title 10 status, the LOD should have
been conducted by the NGB or Headquarters Company, U. S. Army [Fort Myer,
VA] regardless of the fact he was not in active Federal service when the
investigation was started in December 1994.

      (4) Headquarters, District of Columbia National Guard Orders 097-503
dated 11 July 1995 transferring the applicant to the Inactive National
Guard apparently were issued without a proper basis of authority because,
when challenged, they were subsequently revoked in Headquarters, District
of Columbia National Guard orders 157-007 dated 6 June 2003.

21.  The advisory opinion noted the applicant continued to work into early
October [1994] and continued his medical appointments expecting that his
ADSW tour orders [extension] would be forthcoming.

22.  The advisory opinion recommended the applicant's ADSW tour termination
be nullified; the DA Form 2173 completed in January 1995 be nullified; the
findings of the formal LOD investigation performed by Major P___ in April
2005 that the applicant's condition manifested itself while on duty and
that it be determined to be in line of duty be approved; and the applicant
be awarded a medical retirement as of a reasonable date such
disqualification would have been made had he been processed for such a
retirement.

23.  Based upon the advisory opinion, the applicant submitted his
application to the ABCMR.  Twice previously the applicant had requested a
medical retirement. His requests were denied by the ABCMR in Docket Number
AR1999023985 on   15 February 2000 and in Docket Number AR20040000035 on 31
August 2004.  The staff of the ABCMR also administratively closed a third
request for a medical retirement by letter dated on 27 January 2005.  In
that letter, the applicant was informed, in part, that an LOD finding has
no bearing on whether referral to the Physical Disability System is
required.

24.  Title 10, U. S. Code, section 12686(a) states a member of a Reserve
Component who is on active duty (other than for training) and is within two
years of becoming eligible for retired pay under a purely military
retirement system may not be involuntarily released from that duty before
he becomes eligible for that pay unless the release is approved by the
Secretary.

25.  On 5 October 1994, Title 10, U. S. Code, section 12686(b) was added to
provide, with respect to a member of a Reserve Component who is to be
ordered to active duty (other than for training) under section 12301 of
this title pursuant to an order to active duty that specifies a period of
less than 180 days and who (but for this subsection) would be covered by
subsection (a), the Secretary concerned may require, as a condition of such
order to active duty, that the member waive the applicability of subsection
(a) to the member for the period of active duty covered by that order.  In
carrying out this subsection, the Secretary concerned may require that a
waiver under the preceding sentence be executed before the period of active
duty begins.

26.  Army Regulation 135-200 (Active Duty for Training, Annual Training,
and Active Duty for Special Work of Individual Soldiers), the version in
effect at the time, prescribed policies and procedures for ordering ARNG
and U. S. Army Reserve Soldiers to annual training (AT), active duty for
training (ADT) , initial active duty for training (IADT), and ADSW.
Paragraph 1-11 stated ADT, IADT, and ADSW orders would clearly cite section
672(d), Title 10, U. S. Code as the authority for ordering a Soldier to
active duty.  (The current version of the regulation states section
12301(d) will be cited.)  Paragraph 1-11a(10)(a) stated the "sanctuary"
provision would not apply to Soldiers who came within 2 years of retirement
eligibility during a period of AT, ADT, or IADT.

27.  Army Regulation 135-200, paragraph 6-6a(6) stated, if being considered
for an ADSW tour in the first 2 months of a fiscal year, the Soldier must
have had a minimum break of 60 continuous calendar days following the last
day of an ADSW tour in the previous fiscal year.  That break was only
required if the Soldier had accumulated over 30 days of ADSW in the last
quarter of the previous fiscal year.
28.  Army Regulation 135-200, paragraph c stated a Soldier applying for
ADSW who was or would be within 2 years of qualifying for an active Federal
service retirement would enter the following in the remarks section of the
DA Form  1058-R (Application for Active Duty for Training, Active Duty for
Special Work, and Annual Training for Soldiers of the Army National Guard
and U. S. Army Reserve):

      "I understand that, although at the completion of my tour I may be
within   2 years of qualifying for an active duty retirement under 10 USC
1293, 3911, or 3914, it is current Army policy that I will be released from
active duty at the completion of my tour unless my continued retention on
active duty is considered in the best interests of the Army by the
Assistant Secretary of the Army (Manpower and Reserve Affairs).  I hereby
consent to being ordered to active duty for the period indicated and
consent to my release from active duty at the completion of this tour."

29.  The current version of the DA Form 1058-R is dated July 1993.  The
required statement is pre-printed in item 24 (Remarks).

30.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 In pertinent part, it states that according to accepted medical
principles, certain abnormalities and residual conditions exist that, when
discovered, lead to the conclusion that they must have existed or have
started before the individual entered the military service.  Examples are
manifestation of lesions or symptoms of chronic disease from date of entry
on active military service (or so close to that date of entry that the
disease could not have started in so short a period) will be accepted as
proof that the disease existed prior to entrance into active military
service.

31.  Army Regulation 635-40, paragraph 3-4 states, under the laws governing
the Army Physical Disability Evaluation System, Soldiers who sustain or
aggravate physically unfitting disabilities must meet certain line of duty
criteria to be eligible to receive retirement and severance pay benefits
including that the disability 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.

32.  The DSM-IV describes "Phase of Life Problem" as a category that can be
used when the focus of clinical attention is a problem associated with a
particular developmental phase or some other life circumstance that is not
due to a mental disorder or, if it is due to a mental disorder, is
sufficiently severe to warrant independent clinical attention.  Examples
include problems associated with entering school, leaving parental control,
starting a new career, and changes involved in marriage, divorce, and
retirement.

33.  The DSM-IV categorizes PTSD as an anxiety disorder.  It states the
essential feature of PTSD is the development of characteristic symptoms
following exposure to an extreme traumatic stressor involving direct
personal experience of an event that involves actual or threatened death or
serious injury, or other threat to one's physical integrity, or witnessing
an event that involves death, injury, or a threat to the physical integrity
of another person, or learning about unexpected or violent death, serious
harm, or threat of death or injury experienced by a family member or other
close associate.  The person's response to the event must involve intense
fear, helplessness, or horror.  Traumatic events that are experienced
directly include, but are not limited to, military combat, violent personal
assault, being kidnapped, being taken hostage, terrorist attack, torture,
incarceration as a prisoner or war or in a concentration camp, natural or
manmade disaster, severe automobile accidents, or being diagnosed with a
life-threatening illness.

34.  The DSM-IV states the essential feature of Acute Stress Disorder is
the development of characteristic anxiety, dissociative, and other symptoms
that occurs within 1 month after exposure to an extreme traumatic stressor.
 Because PTSD requires more than 1 month of symptoms, this diagnosis cannot
be made during this initial 1-month period.  Symptoms of Acute Stress
disorder are experienced during or immediately after the trauma, last for
at least 2 days, and either resolve within 4 weeks after the conclusion of
the traumatic event or the diagnosis is changed.

35.  The DSM-IV states the essential feature of Generalized Anxiety
Disorder is excessive anxiety and worry, occurring more days than not for a
period of at least 6 months.  The anxiety and worry are accompanied by at
least three additional symptoms from a list that includes restlessness,
being easily fatigued, difficulty concentrating, irritability, muscle
tension, and disturbed sleep.  The intensity, duration, or frequency of the
anxiety and worry is far out of proportion to the actual likelihood or
impact of the feared event.

36.  Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line
of Duty Investigations), in effect at the time, Part 5, set forth policies
and procedures for investigating the circumstances of the disease, injury,
or death of a service member.  Paragraph 38-4b stated the Chief, NGB acted
in the name of the Secretary of the Army as final approving authority for
the ARNG except for those members in a federalized status.  Paragraph 38-8a
stated the LOD appointing authority normally was the commander who
exercised special court-martial convening authority over the Soldier
involved.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant's original ADSW orders incorrectly cited Title
32, U. S Code, section 502(f) as the authority.  As the advisory opinion
noted, the applicant was ordered to report to the ARNG Readiness Center, a
Field Operating Activity of the NGB.  In accordance with the advisory
opinion and Army Regulation 135-200, the authority should have read "Title
10 USC 672(d)."

2.  Contrary to the advisory opinion stating the ending date of the
applicant's period of ADSW was questionable, the ending period of 29
September 1994 appears to have been in conformance with Army Regulation 135-
200 (i.e., if being considered for an ADSW tour in the first 2 months of a
fiscal year, the Soldier must have had a minimum break of 60 continuous
calendar days following the last day of an ADSW tour in the previous fiscal
year.  The break was only required if the Soldier had accumulated over 30
days of ADSW in the last quarter of the previous fiscal year.)

3.  The applicant had performed more than 30 days of ADSW in the last
quarter of fiscal year 1994 (22 July through 29 September 1994).  By
regulation, he could not have started another ADSW tour until about 29
November 1994.

4.  The applicant contended he was erroneously released from active duty at
the expiration of his ADSW tour on 29 September 1994 because he had more
than 18 years of active service (i.e., active duty).

5.  It is acknowledged the ARNG Current Annual Statement [of retirement
points] dated 1 June 2005 shows the applicant was credited with 18 years, 1
month, and 23 days of active duty when he entered his ADSW tour on 22 July
1994.  As the advisory opinion pointed out, the DCARNG should have known
the applicant had over 18 years of active Federal service at that time.
The advisory opinion's citing of the sanctuary provisions of Title 10, U.
S. Code, section 12686(a) is also noted.

6.  However, Title 10, U. S. Code, section 12686(a) states a member of a
Reserve Component who is on active duty (other than for training) and is
within two years of becoming eligible for retired pay …may not be
involuntarily released from that duty before he becomes eligible for that
pay.  It appears section 12686(b) was added on 5 October 1994 to codify the
provisions already followed by the Army (and presumably the other Services)
and already outlined in Army Regulation 135-200.  That is, a Soldier
applying for ADSW who was or would be within 2 years of qualifying for
active Federal service retirement would enter in the remarks section of the
DA Form 1058-R a request for a waiver of this rule, provide his or her
consent to being ordered to active duty for the period indicated, and
consent to his or her release from active duty at the completion of the
tour.

7.  The applicant's DA Form 1058-R for the ADSW period in question is not
available.  However, the current version of the form is dated July 1993 and
so was also the form the applicant would have completed.  The required
statement is pre-printed in item 24; therefore, the statement could not
have been left off the form inadvertently.  Administrative regularity is
presumed.  Therefore, appears the applicant was not involuntarily released
from active duty and so the sanctuary provisions of Title 10, U. S. Code,
section 12686(a) did not apply to him.

8.  The applicant contends he suffered a severe financial setback during
his last period of active duty that he feels was the main cause of the
onset of his PTSD.  The diagnosis of the DVA physician will not be
disputed; however, it is noted it appears he did not meet the DSM-IV
criteria for a diagnosis of PTSD while he was on active duty.  The DSM-IV
requires an extreme traumatic stressor, such as military combat, to trigger
a response that involves intense fear, helplessness, or horror.  It also
requires more than one month of symptoms.  He was first seen by military
medical personnel on 19 September 1994 for grief therapy/crisis.  It does
not appear he made any mention of "… intrusive thoughts and flashbacks and
persistent nightmares" and guilty feelings about war" that would have been
symptomatic of PTSD until October or November 1994, after he was released
from active duty.

9.  More importantly, however, in order to be determined to be unfit the
unfitness must be of such a degree that the Soldier is unable to perform
his duties in such a way as to reasonably fulfill the purposes of his
employment on active duty.  There is no evidence to show the applicant was
ever unfit to perform his duties while on active duty.  The advisory
opinion even noted the applicant continued to work into early October
[1994] and continued his medical appointments expecting that his ADSW tour
orders [extension] would be forthcoming.  That is, he felt sufficiently
fit, even though he was being treated for a medical condition, after he was
properly released from active duty.  Therefore, the evidence shows there
was no basis for referring him to the Physical Disability System.

10.  The applicant contended the DA Form 2173 was initiated in and
completed by the office to which he was assigned when it should have been
completed by the unit to which he was attached for administration,
Headquarters Company,   U. S. Army at Fort Myer, VA.  In accordance with
the advisory opinion and the regulation in effect at the time, it appears
the applicant is correct.

11.  However, it has already been concluded there was no basis for
referring the applicant to the Physical Disability System.  In the ABCMR's
27 January 2005 letter to the applicant he was informed, in part, that an
LOD finding has no bearing on whether referral to the Physical Disability
System is required.  The DVA has already awarded the applicant a 100
percent service-connected disability rating.  Any recommendation the Board
would make concerning correcting the LOD to show a finding of In Line of
Duty would provide the applicant no effective relief.  However, this is not
meant to prevent the applicant from appealing the findings of the LOD based
upon it being conducted by a command not authorized to do so.

12.  The applicant contended the DA Form 2173 initiated on 20 December 1994
improperly determined he had a "phase of life problem." The DSM-IV
describes "Phase of Life Problem" as a category that can be used when the
focus of clinical attention is a problem associated with a particular
developmental phase or some other life circumstance that is not due to a
mental disorder.  Examples include problems associated with starting a new
career and changes involved in marriage, divorce, and retirement.  The
applicant's problem at the time was not due to a mental disorder.  As he
acknowledges, it was due to a financial problem with the IRS and then to
DFAS's response to the IRS levy (and failure to respond to the release from
levy) when he began his ADSW tour (analogous to a new career).  Therefore,
it appears the determination he had a "phase of life problem" was correct.

13.  The applicant contended the DA Form 2173 initiated on 20 December 1994
improperly mentioned his "…financial situation improved…" while he was on
that period of duty."   Based upon the fact DFAS deducted $1,238.13 from
his           31 August 1994 pay for the IRS after he had been released
from the IRS levy, there is sufficient evidence to show his financial
situation was not improved during that period of duty.  Therefore, the DA
Form 2173 should be amended to delete the phrase "…and actually improved
while on active duty" in item 11.

14.  The remainder of the phrase in item 11 of the DA Form 2173 initiated
on    20 December 1994, "Financial problems prompting him to seek care
existed prior to active duty period…" appears to be accurate.  Had the IRS
not placed a levy against him prior to his entry on the ADSW tour in the
first place, DFAS could not have exacerbated the problem.  The entry in
item 15, "Emotional concerns were precipitated by financial problems which
started the first of July 1994, prior to start of active duty service,"
appears to be accurate for the same reason.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__jea___  __bpi___  __mjf___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

     a.  changing the authority cited in Headquarters, District of Columbia
National Guard Orders 100-21 dated 23 July 1994 to read "Title 10 USC
672(d)"; and

     b.   correct item 11 of the DA Form 2173 initiated on 20 December 1994
to delete the phrase "…and actually improved while on active duty.".

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application as pertains to
correcting his records to show he was retained on active duty due to
sanctuary and given a 20-year length of service retirement; correcting his
records to show he was retained on active duty due to sanctuary and given a
medical retirement on an appropriate date determined by the Army Board for
Correction of Military Records (ABCMR); correcting his DA Form 2173
initiated on 20 December 1994 to delete the determination "phase of life
problem"; correcting his LOD determinations to attribute his condition to
the severe stress of a financial situation in which DFAS deducted funds
from his pay and submitted them to the IRS; and granting him compensation
due from all requested corrections.




            __James E. Anderholm__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012332                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |136.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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