RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20060014524 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

Member

Mr. Edward E. Montgomery

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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be retired on the Permanent Disability Retirement List (PDRL) with thirty percent disability as of his date of separation in the pay grade of E8.

2.  Counsel states that the applicant was separated from active duty on 
15 October 2004, after 1 year, 8 months, and 13 days following a National Guard mobilization.  He was separated with an honorable discharge having completed his required active duty service.  The applicant was previously ordered to retire on 24 October 2004 with a separation program code (SPD) of SFJ, PDRL, with thirty percent disability in the rank of first sergeant, pay grade E8.  In a manner unknown and undoubtedly in violation of regulation, the applicant was released from active duty (REFRAD) prior to medical retirement.  

3.  Counsel provides copies of the applicant’s Certificate of Release or discharge from Active Duty (DD Form 214), Physical Disability Information Report, Medical Evaluation Board (MEB) Proceedings, with addendum, orders retaining the applicant on active duty, MEB Inquiry, Physical Evaluation Board (PEB) Proceedings (DA Form 199), REFRAD orders, Department of Veterans Affairs (VA) letter, and an Army National Guard (ARNG) Retirement Points History Statement.

CONSIDERATION OF EVIDENCE:

1.  On 3 September 1974, the applicant enlisted in the Delayed Entry Program and was subsequently brought on active duty in the Regular Army on 27 March 1975.  He served on active duty until 24 March 1978.  He had completed 3 years, 11 months, and 28 days of creditable active duty and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). 

2.  On 19 June 1978, the applicant enlisted in the United States Air Force Reserve and served until 18 June 1982.  During this period of service he had completed 3 months and 13 days of creditable active duty, and was discharged.

3.  On 1 May 1987, the applicant enlisted in the USAR Troop Program Unit (TPU).  He remained with his TPU until 29 August 2000.

4.  On 30 August 2000, the applicant enlisted in the ARNG and was mobilized on 3 February 2003 in accordance with Title 10, United States Code (USC) 12302, in support of Operation Enduring Freedom.  He served in Iraq from 14 April to 
25 September 2003.  He was retained on active duty an additional 92 days for the convenience of the government in accordance with Title 10, USC 12301(D).

5.  On 28 April 2004, an MEB, was convened at Ireland Army Community Hospital (IACH), Fort Knox, Kentucky, to evaluate the applicant’s medical condition.  The board found that he suffered from post-traumatic stress disorder as of October 2003; coccyx area pain and status postoperative lipectomy left posterior thorax as of January 2004.  These conditions incurred while entitled to base pay.  It also found that he suffered from low back pain, cervical spine pain, and had a history of right elbow olecranon bursitis with spur.  These conditions were determined to have existed prior to current tour of service (EPTS) and were not incurred while entitled to base pay.  The MEB referred the applicant to a PEB.  The applicant indicated that he did not desire to remain on active duty.  The MEB findings and recommendation were approved on 11 May 2004, and the applicant agreed with the board’s findings and recommendation.

6.  Orders, A-07-407175, United States Army Human Resources Command, Alexandria, Virginia, dated 16 July 2004, retained the applicant on active duty under the provision of Title 10, USC Section 12301 (D), to voluntarily participate in the Reserve Component medical holdover and medical retention processing program for completion of medical care and treatment.  The ending date of this period was 10 January 2005.

7.  On 20 August 2004, the Department of Behavioral Health, IACH, provided an MEB inquiry psychiatric response.  The applicant was interviewed on two occasions for approximately 3 to 4 hours, and available records were reviewed by the examiner for more than 6 hours.  The chief complaints were insomnia, nightmares, flashbacks, irritability, loss of time while driving, feeling vulnerable, and automatic reactions when hearing certain noises.  He is easily startled, experiences guilt feelings about the death of peers, does not trust anyone, and only feels safe at home in his room.  The neuropsychiatrist recommended that the MEB, from a psychiatric perspective, entered on 28 April 2004, be accepted.

8.  On 2 September 2004, a PEB was convened to consider the applicant’s medical condition.  It found that he suffered from low back pain with bulging L5-S1 disc with degenerative joint disease.  The back had been variably painful prior to this mobilization, but considered to be permanently aggravated during this period of active duty.  The PEB rated this condition at twenty percent disabling.  It 
also found that he suffered from post-traumatic stress disorder, reported to be a result of accumulative trauma including a C-130 plane crash during previous active duty and cumulative experiences during current period of active duty.  The PEB rated this condition at ten percent disabling.   Both conditions were not the result of intentional misconduct, willful neglect, or unauthorized absence.  Both conditions were incurred while the applicant was entitled to basic pay.  The proximate cause for these medical conditions was his in line of duty performance. The PEB found the Soldier physically unfit and recommended a combined disability rating of thirty percent, and that the Soldier’s disposition be permanent disability retirement.

9.  The Physical Disability Board (PDB) Processing System shows that on 
9 September 2004, the Secretary approved the applicant's thirty per cent disability.  It further shows that orders were issued on 24 September 2004 and dispatched to Fort Knox, Kentucky.  

10.  On 24 September 2004, a Physical Disability Information Report prepared at Fort Knox, Kentucky, indicates that the applicant was to be separated on 
24 October 2004 by reason of permanent disability, SPD SFJ, in the rank of first sergeant, pay grade E8, and placed on the PDRL effective 25 October 2004.  

11.  Orders 282-01, Headquarters Fort McCoy, Fort McCoy, Wisconsin, dated 
8 October 2004, REFRAD the applicant effective 15 October 2004, and assigned him to The Adjutant General, Illinois ARNG.

12.  Accordingly, on 15 October 2004, the applicant was honorably REFRAD for completion of required service and transferred to The Adjutant General, Illinois ARNG.  He last held the rank of master sergeant, pay grade E8, and had completed 1 year, 8 months, and 13 days of creditable active duty during this period of service.

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, 111 South George Mason Drive, Arlington, Virginia 22204-1382.  The Chief recommended approval of the applicant’s request to be placed on the PDRL in pay grade E8 effective 
15 October 2004 based on the MEB and PEB findings and subsequent approval for a thirty percent disability.  The Chief further stated that Army Regulation
600-200, paragraph 12-3b provides that retirement normally will be in the Reserve grade the Soldier holds on the date of retirement.  According to Title 10, USC, section 1201, for a member on active duty for more than 30 days who is unfit because of physical disability, the Department Secretary may retire the member, with retired pay, if the member has at least 20 years of service computed under section 1208 of this title, or if the disability is at least thirty percent under the standard schedule of rating disabilities in use by the VA at the time of the determination and the disability is the result of performing active duty. 

14.  On 23 May 2007, the applicant’s counsel concurred with the advisory opinion on his behalf.

15.  Army Regulation 635–40 (Personnel Separations) Physical Evaluation for Retention, Retirement, or Separation, governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 24b (1) provides for permanent disability retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant had been serving on an extended period of active duty when he was considered by both an MEB and a PEB and found to be physically unfit for duty and was recommended for permanent disability retirement based on a thirty percent disability rating. 

2.  The PDA concurred and provided orders to Fort Knox, Kentucky, directing his disability retirement.

3.  The subsequent release from active duty and transfer to the Illinois ARNG is unexplained in the available evidence, but appears to have been done in error by the personnel at Fort McCoy, Wisconsin. 

4.  In view of the above, the applicant’s request to be placed on the PDRL effective 15 October 2004, in the rank of first sergeant, pay grade E8, should be granted.

BOARD VOTE:

__EEM__  __SAP__  __KAN___  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 all Department of the Army records of the individual concerned be corrected by:

	a.  voiding his DD Form 214, showing that he was released from active duty by reason of completion of required service on 15 October 2004;

	b.  issuing him a DD Form 214, showing that on 15 October 2004, under the authority of Army Regulation 635-200, paragraph 24b(1), he was retired due to a permanent disability (SPD code SFJ) in the rank of Master Sergeant, pay grade E8; 

	c.  publishing orders placing him on the Permanent Disability Retired List in the rank of first sergeant, pay grade E8, with a thirty percent disability, effective 15 October 2004; and

	d.  paying him all back pay and/or allowances, effective 15 October 2004, due as a result of this correction.




__  Kathleen A. Newman_______
          CHAIRPERSON




INDEX

CASE ID
AR20060014524
SUFFIX

RECON
 
DATE BOARDED
20070710 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.