RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070017175 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome J. Pionk

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 that he be granted an active duty medical extension (ADME), backdated to 10 October 2004; that his records be corrected to show he completed 2 years and 7 months of active duty, sufficient to put him over the   18-years active Federal service (AFS) point and place him in sanctuary; that he be reinstated on active duty to complete his 20 years of active duty; that he be reinstated at the Defense Language Institute (DLI) to complete Uzbek language training; that his TRICARE Prime coverage from 10 October 2004 to the present be reinstated; that 82 days of leave that would have accrued during his ADME service be reinstated; that $2,463.00 in moving expenses be reimbursed; that $39,900.00 for the difference between the market value of his home and the distressed sale price be reimbursed; that $6,800.00 for the difference in the value of household appliances and the distressed sale price of those appliances be reimbursed; and that letters of reprimand be issued to several members of the Washington Army National Guard (WAARNG).  

2.  The applicant stated, in a letter dated 27 June 2007, to a staff member of the Committee for Oversight and Government Reform, House Armed Services Committee, that he should have been allowed to remain on active duty in an ADME status.  His unit put out bad information and did not know the regulations. He insisted he was supposed to remain on active duty but not until he won his appeal did he find out about the ADME program.  

3.  The applicant stated that the decision not to let him extend was made in two places, and neither one had the authority to make that decision.  Major H___ (now retired) of State Operations did not want him extended, which meant he abused and overstepped his authority.  Master Sergeant (MSG) W___, in an email to Major R___ and Major H___, did not want him extended.  For the purpose of re-starting school, that was their choice.  From the medical standpoint, it far exceeded their authority.  

4.  The applicant stated that after being told that he could not be returned to active duty and not yet being cleared by his doctors to return to work, he applied for incapacitation pay.  He was not eligible for unemployment because he was not able to work yet, as he still needed surgery to remove the wires from his chest that were cutting into him. Since that condition would last for less than        8 months he was unable to get public assistance.  Since it was not going to last a whole year or more, Social Security would not help, either.

5.  The applicant stated that the loss of all pay and allowances before he was able to return to work left him with no alternative but to sell their home to preclude foreclosure.  In the process of selling the house they had to lower their selling price $39,999.00 below market value to get a quick sale.  Additionally, they had to throw in $6,800.00 worth of household appliances, tractor, and equipment, and $5,500.99 in changes to the house and repainting to the new owners’ specifications.  In addition, he had to spend $2,463.00 to move from the house in Cheney, WA to his apartment in Spokane, WA.  All because of that refusal to grant him his right to remain on active duty until his medical issue was completed and he returned to full duty on 11 May 2007.

6.  The applicant stated that the last and possibly most important issue to him is the problem he has had getting his Military Intelligence (MI) qualification.  When he joined the WAARNG and was assigned to the 341st MI Battalion, it was his intention to go to DLI to study the German language.  That did not align with the battalion’s current mission, and that was understandable.  He was told they needed only category 4 linguists (i.e., Arabic, Japanese, Korean, and Chinese).  He tried to return to DLI to tackle Arabic, but his unit did not encourage him.  He finally got a slot for Arabic in 2001 for a May 2002 class start date.  However, one week prior to departure to DLI he was informed that the State was not being reimbursed in a timely manner for funds expended from the State budget to fund its Airport Security Missions.  The Washington State Military Department was broke; therefore, he got the axe.

7.  The applicant stated that, in June 2002, the Federal Government authorized funding for the Operation Enduring Freedom language training.  He was asked, and he readily agreed, to go to DLI (for Uzbek).  At the end of January 2003, he developed a kidney stone that took a week and narcotic medications to pass.  He explained his prior difficulties with getting into DLI with the Reserve Liaison, Command Sergeant Major (CSM) D___.  CSM D___ saw that his grades were good enough to warrant his coming back to restart in the summer when the next course began.  He returned to school and was doing fine academically when,     60 days before the end of the course, he had his coronary bypass operation.

8.  The applicant stated that while he was waiting for the final word from his fit for duty examination, he sought information on what his options for completing the DLI course would be.  He even offered to return to DLI at his own expense and even pay for private instruction.  On 11 May 2007, he received the final determination from the doctor.  However, he was then told that he was not going to be allowed to go to DLI to take his DLPT (defense language proficiency test).  Admittedly, after 3 years since his last day of school he would need a couple months of refresher training before testing.  Now, there are no slots available in the MI courses for annual training.  Military intelligence analysts now must be language qualified, and he would have to wait until next summer to go.  By then, he would be within 2 years of his mandatory age 60 retirement.  If he ever hopes to be promoted, he would have to take that promotion and go to a maintenance unit, which is now his primary specialty (or in his secondary specialty of 11B, Infantryman).  

9.  The applicant provides active duty for training (ADT) orders, dated 18 July 2003, with an amendment, dated 27 September 2004; two DA Forms 2823 (Sworn Statement), dated 28 February 2005 and 25 February 2005; a DA Form 2823, dated 17 February 2005, from the applicant; a synopsis, Discussion with MSG Debra N___ Regarding (the applicant), dated 21 February 2005; a memorandum from the U. S. Army Human Resources Command (USAHRC), dated 29 November 2006; a letter, dated 2 April 2007, to a staff member of the Committee for Oversight and Government Reform, House Armed Services Committee; an unaddressed memorandum, prepared by the applicant, dated      2 April 2007; emails, dated 15 September 2004, 28 October 2004, 2 November 2004, 12 January 2005, and 18 January 2005, a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 17 February 2005; page 4 (of 5) of his answers to questions from the line of duty (LD or LOD) investigator; an extract from Army Regulation 135-381; a memorandum from DLI, dated 20 February 2003; a DLI Form 716 (Notice of Change in Student Status), dated 20 February 2003; two Official Grade Reports; and a Timeline.

10.  The applicant also provided three, 3-inch 3-ring binders, titled “LOD Book I”; “LOD Book II”; and “LOD Book III.”  The first few pages of “LOD Book I” consists of a DA Form 3881, undated; a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 October 2004; and an incomplete         DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 28 August 2003, with a Summary of Findings.  

11.  The next document in “LOD Book I” is an exhibit list for the applicant’s formal LOD investigation.  “LOD Book I” consists of those exhibits listed in Exhibits A through F; “LOD Book II” consists of those exhibits listed in Exhibit G; and “LOD Book III” consists of those exhibits listed in Exhibits H through U.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 23 December 1950.  After having had prior service in the Regular Army (from December 1968 to September 1984, with a break in service from November 1977 to June 1980) and the U. S. Army Reserve (from September 1984 to March 1997, during which time his ARNG Retirement Points History Statement shows he performed no active duty), he enlisted in the ARNG on 4 March 1997.  His ARNG Retirement Points History Statement shows he began to perform periods of extensive active duty each retirement year beginning in 1999 (e.g., 193 days, 192 days, etc.).

2.  Orders, dated 22 August 2002, ordered the applicant to active duty for training (ADT) for the period 26 August 2002 through 28 August 2003 to attend the Uzbek language course at DLI, Monterey, CA under the authority of Title 32,     U. S. Code, section 504.  These orders were amended on 24 February 2003 to end his ADT on 7 March 2003.  

3.  The applicant completed a periodic physical examination on 10 July 2003 and was found to be qualified for worldwide service.  The medical records at the time indicated that the applicant was a one-pack per day cigarette smoker and that his father died of a heart attack, a sister had two heart attacks, and a brother had two strokes.  An ECG indicated “sinus arrhythmia” (an irregular or abnormal heartbeat) but also that it was normal.  At the time of this physical examination the applicant apparently failed to reveal several instances of previous medical problems he had suffered from (e.g., a transient ischemic attack in 1998).

4.  Orders, dated 18 July 2003, ordered the applicant to ADT for the period         27 August 2003 through 20 September 2004 to attend the Uzbek language course at DLI, Monterey, CA under the authority of Title 32, U. S. Code, section 504.  

5.  The applicant’s notification of eligibility for retired pay (his 20-year letter) is dated 8 October 2003.  

6.  In a sworn statement for the formal LD investigation, dated 17 February 2005, the applicant stated that sometime during the second week of October 2003 he had the first in a series of 6 or 7 bouts of severe chest pain.  Because he thought it was another case of really harsh gas, which had occurred previously, he did not seek treatment at that time.  

7.  On 1 December 2003, the applicant was treated for a complaint of knee pain. 

8.  In his 17 February 2005 sworn statement, the applicant stated that on 27 or 28 December 2003, when all services on base were closed down, he had a bout of chest pain that almost put him on his knees.  He waited until 6 January 2004, when the medical facility re-opened, to seek medical attention.  An ECG (electrocardiogram) indicated the possibility of a myocardial infarction.  

9.  On 6 January 2004 and 4 March 2004, the applicant had abnormal ECGs.  An inferior infarct could not be ruled out.  On 22 April 2004, a stress ECG was found to be abnormal.  On 30 April 2004, he had a percutaneous coronary angioplasty and stent placement.  

10.  In his 17 February 2005 sworn statement, the applicant stated he returned to class after missing only two days.  Eventually, his stent blocked-up and failed.  On 28 June 2004, another angiogram revealed that his stent was 60 percent blocked.  There was no way to safely unblock his right coronary artery and the stent could not be fixed so he decided to allow a double bypass, which was performed on 30 June 2004.  

11.  On 29 June 2004, the applicant’s stent was found to have fibrosed.  In a letter from Doctor S___ to Doctors C___ and B___, Doctor S___ stated, “From a catheter based intervention point of view this area could easily be fixed by putting another short stent in there with careful positioning.  However as you know (the applicant) wishes to pursue an ongoing active military career which will require complete revascularization with normalization of his stress test…and we are all in agreement that a catheter based intervention would not be a good idea for this chronic total occlusion of the right coronary artery…As such per the patient’s preference I discussed this case with Dr Scott M___ at Stanford and he is going to arrange for coronary bypass surgery with two arterial conduits….”

12.  On 30 June 2004, the applicant underwent double bypass surgery.  On        4 July 2004, he was discharged from the Cardiac Rehabilitation Department.  Discharge instructions stated he should avoid vigorous sports and activities for   3 months to include heavy gardening.  He was to check with his doctor before resuming those activities.  He was also given a list of “Sternal Precautions” that stated, “No lifting >5lbs for 6 weeks.”

13.  In his 17 February 2005 sworn statement, the applicant stated he was discharged back to DLI on 4 July 2004.  After 5 weeks of post-surgical followups, he was given clearance to travel home on convalescent leave.  When he left, it was a school day and no one was available to help him with his luggage to get it down from the third floor and up a very long staircase to a taxi.  Herein lay the beginning of the injury to his sternal area.  His luggage was very heavy, and by the time he put it down at home he had handled those bags six different times.

14.  In a letter dated 20 July 2004, the applicant’s doctor at Stanford University School of Medicine, Department of Cardiovascular and Thoracic Surgery, stated that the applicant would be unable to return to work until 1 October 2004 due to cardiac surgery recovery.  

15.  On 6 August 2004, the applicant was given a temporary profile, to expire on 6 November 2004, due to his recent coronary artery surgery with assignment limitations of physical training at own pace and distance and no upper and lower body weight training.

16.  In a DA Form 2173, dated 13 August 2004 and signed by the DLI unit commander on 6 October 2004, the Commander, California Medical Detachment, U. S. Army Medical Clinic, Presidio of Monterey, CA determined that the applicant’s open heart surgery, performed on 29 June 2004 at Stanford Medical Center in California, was considered to have been incurred in the line of duty (ILD) and that no formal LD was required.  

17.  In his 17 February 2005 sworn statement, the applicant stated he flew home to Spokane, WA on 17 August 2004.  During the first week of September 2004, he notified his battalion that he needed an extension of his orders.  He informed them that his doctor put him off work until 1 October.  That was the first time his unit knew he was home.  He stated it took almost 4 weeks to get a level five signature authority to sign his extensions orders.  

18.  Orders dated 27 September 2004 amended the applicant’s 18 July 2003 orders to extend his active duty period until 9 October 2004.  He was released from active duty on this date, at which time he had completed about 16 years and 7 months of creditable active service.

19.  In his 17 February 2005 sworn statement, the applicant stated that when he got home he and his wife purchased several trees for landscaping.  When he pulled the largest tree off his truck’s tailgate he felt a stabbing pain.  When he picked up the next, small tree, about 3 to 5 gallons, he felt a pop in his chest.  The pain became constant and severe, and he stopped doing anymore lifting of any kind.  He did not see a doctor in Spokane for two reasons.  First, he was going back to DLI soon and would be in contact with his doctors there.  Also, he could not afford to potentially be hospitalized and restricted from traveling back to DLI.  He returned to DLI, reset his doctor’s appointment to 5 October 2004 (since State refused to extend him until 19 October, on which date the appointment was originally scheduled).  His doctor told him his situation was serious but not an emergency, and he should seek out medical assistance in Washington.  When he returned to Washington and told his unit he needed to see a cardiothoracic surgeon, he was abruptly told he was no longer on active duty and therefore not eligible to use a military medical facility even though he was in possession of an LD letter and referrals from an Army doctor. 

20.  In his 17 February 2005 sworn statement, the applicant stated his unit told him that if he needed a doctor he could go and get one.  He therefore made an appointment with a civilian doctor for 19 October 2004.  His battalion was informed the operation was scheduled for 29 October 2004.  On 28 October 2004, his battalion warned him that he could have the operation, but since he had not been seen by a military doctor he would have to pay for it.  He immediately cancelled the surgery. After 3 months, he finally got his operation and was cleared to return to work and full military duty as of 1 February 2005.

21.  By memorandum dated 1 November 2004, the State of Washington, Military Department requested that the applicant’s unit appoint a formal LD investigating officer (IO) to determine whether the applicant’s illness was duty related or a  pre-existing condition.  

22.  The applicant apparently first applied for incapacitation pay on 15 November 2004.  (The applicant informed the Board analyst that his civilian occupation is truck driver.)

23.  On 7 January 2005, the applicant underwent surgery to remove painful and irritated sternal wires.  

24.  On 10 January 2005, the State of Washington, Military Department, informed the applicant that the Incapacitation Review Board, which met on 9 January 2005, was unable to make a determination on his claim as a formal LD investigation had not been completed.

25.  The applicant’s noncommissioned officer evaluation report (NCOER) for the period 1 September 2004 through 31 January 2005 shows his principal duty title as Platoon Sergeant in the 341st MI Battalion.  His competence was rated as “Needs Improvement,” but apparently only because he was not duty-MOS (military occupational specialty) qualified (as a result of not completing Uzbek language training).  His physical fitness and military bearing were rated as “Needs Improvement.”  This entry noted that he had a physical profile dated         1 September 2004 but did not indicate whether his profile hindered the performance of his duties.

26.  The applicant’s records also contain an NCOER for the period 1 October 2004 through 30 September 2005.  However, the reverse side of this NCOER is exactly the same as the NCOER for the period ending 31 January 2005, down to the THRU DATE of 31 January 2005 listed at the top.

27.  In a letter dated 2 February 2005, the State of Washington, Employment Security Department, Medical Certification, requested the applicant provide medical information regarding his ability to work.  In reply, the applicant’s doctor stated, “At this point there is no reason to restrict his activities.  He may resume unrestricted activities and may return to active duty per examination by Dr. Leland S___ on 1 February 2005.  This letter also noted that the applicant’s treatment began on 19 October 2004, he was totally disabled for work on            7 January 2005, and he was released for full-time work on 1 February 2005.
28.  By memorandum dated 14 February 2005, the applicant’s WAARNG unit appointed a formal LD IO.  

29.  In a Chronological Order of Investigation of Formal Line-of-Duty for (the applicant), the LD IO noted that the applicant maintained his own medical records.  She met with the applicant on 17 February 2005.  They spent 4.5 hours going over his medical history documents.  She requested he sign a release so she could have his medical records.  He agreed to copy his records and give them to the IO after he “had a chance to go through them and remove some stuff.”  The IO met the applicant on 19 February 2005 to receive his medical records.  She stated his record file was “considerably smaller (approximately    1/3 smaller)” than what she had seen on 17 February 2005.

30.  In a record of conversation with the LD IO, MSG N___ informed the IO, in part, that when a Soldier is injured while on ADT, he should stay on ADT orders until the end of his original order.  Then a Soldier could apply for ADME.  She informed the IO that the applicant did not apply to be put on ADME, he applied for incapacitation pay.

31.  The applicant informed the Board analyst that he was paid incapacitation pay in the amount of $23,570.00 for the period 10 October 2004 through 10 April 2005.  He also reiterated that he would give this up in return for having his records corrected to show he was retained on active duty.

32.  The IO’s formal LD recommendation and WAARNG’s DD Form 261 are not available.  

33.  The applicant’s NCOER for the period 1 October 2005 through                    30 September 2006 shows his principal duty title as Platoon Sergeant in the 341st MI Battalion.  His competence was rated as “Needs Improvement,” but apparently only because he was not duty-MOS qualified.  His physical fitness and military bearing were rated as “Success.”  Comments noted that he had a medical profile but did not note whether the profile hindered the performance of his duties.  His leadership was rated as “Success.”  Comments included, “Led his platoon to victory in a physically challenging platoon on platoon competition.”  

34.  In a memorandum, dated 29 November 2006, to the National Guard Bureau, USAHRC changed the LD finding of “NOT IN LINE OF DUTY-DUE TO OWN MISCONDUCT” to “IN LINE OF DUTY.”  USAHRC, while acknowledging that the applicant had certain medical conditions and that many of his medical conditions had been known, also noted that he was presumed to be medically fit when he came on active duty for an extended period of time.  USAHRC recommended the applicant be placed on ADME or the “MPRS” (i.e., MRP, medical retention processing) program, medically boarded to establish his fitness for duty, and that he be paid his incapacitation pay retroactively.

35.  On 8 May 2007, Madigan Army Medical Center found the applicant to be fit for duty.

36.  The applicant was reassigned to the 951st Ordnance Company on 3 July 2007.  He was promoted to Sergeant First Class, E-7 in MOS 45K (Armament Repairer) on 20 August 2007.

37.  The applicant’s ARNG Retirement Points History Statement shows he actively participated with his unit after being released from active duty (i.e., earning 44 inactive duty (IDT) points during retirement year ending (RYE)         26 September 2005; 48 IDT points during RYE 26 September 2006; and 27 IDT points during RYE 26 September 2007).  The applicant informed the Board analyst that upon returning from DLI his unit informed him that, without a specific doctor’s note excusing him from duty, he would be considered absent without leave if he did not return to work or drill.  So, he returned to drilling and continued doing so until January 2007 when he did only half of a drill but was informed that he was not permitted to drill anymore until he had his Fit for Duty Board.  

38.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states it is presumed that any disease discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to the Soldier’s intentional misconduct or willful negligence and was incurred in LD.  If the foregoing presumption is overcome by a preponderance of the evidence, any additional disability resulting from the preexisting disease was caused by military service aggravation.  (Only specific findings of “natural progression” of the preexisting disease or injury, based upon well-established medical principles are enough to overcome the presumption of military service aggravation).

39.  Army Regulation 635-40 also states that sudden developments (such as coronary occlusion) occurring while the Soldier is in military service will be regarded as service incurred or service aggravated.  This presumption may be overcome when a preponderance of the evidence shows that no permanent new or increased disability resulting from these causes occurred during active military service or that such conditions were the result of “natural progression” of pre-existing disease.

40.  Army Regulation 635-40 further states that the foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinions, speculation, or conjecture.  When reasonable doubt exists about a Soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply.  In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.

41.  Army Regulation 635-40 states that, for Soldiers on active duty less than    30 days, consider a myocardial infarction secondary to chronic disease and not ratable unless there has been significant chest trauma or severe exertional stress during active duty that could reasonably be expected to produce an infarction by aggravation of underlying coronary artery disease or by direct trauma.

42.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) states an LD determination is presumed to be “LD YES” without an investigation in the case of disease, except under two circumstances.  One circumstance is when an injury, disease, death, or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence.  An injury, disease, or death proximately caused by the Soldier’s intentional misconduct or willful negligence is “not in LD – due to own misconduct.”  Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct.  An injury, disease, or death is presumed to be ILD unless refuted by substantial evidence contained in the investigation.  

43.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers),  paragraph 7-2a states Soldiers who incur or aggravate an injury, illness, or disease while on orders for more than 30 days may elect to extend on active duty until treatment is completed.  Chapter 2 states that Reserve Component (RC) Soldiers who incur or aggravate an injury, illness, or disease while participating in training may be treated in a medical treatment facility or be provided medical care elsewhere at Government expense.  Soldiers are authorized follow up medical care for injury, illness, or disease incurred or aggravated in line of duty after completion of active or inactive duty training.  Soldiers who believe they have been improperly denied health care should notify their unit commander.  

44.  Army Regulation 135-381, chapter 4 states that section 204, Title 37, U. S. Code provides authority for continuation of pay and allowances under certain circumstances to Soldiers who are disabled in the line of duty from injury, illness, or disease.  For the purposes of this regulation such continuation of pay and allowances is referred to as “incapacitation pay.”  Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  On release from active duty or termination of inactive duty training, a Soldier may qualify for this entitlement.  Soldiers are entitled to a portion of the same monthly pay and allowances as is provided members of the Active Army with corresponding grade, length of service, marital status, and number of dependents for each period the soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income.  Soldiers will not be issued active duty orders in place of incapacitation pay as a means of providing benefits to which they might otherwise not be entitled.  

45.  An Office of the Army Deputy Chief of Staff, G-1 memorandum dated         16 September 2002, stated that (previously issued) procedural guidance for RC Soldiers on ADME was extended until it could be included in Army Regulation      135-XX.  (Guidance has not yet been incorporated into an Army Regulation.)  RC Soldiers could be retained on active duty when the injury or illness was inccurred ILD and prevented the Soldier from performing his or her normal military duty.  The request would consist of the member's consent to remain on active duty, the physician's statement that medical treatment was required for more than 30 days, the LD determination, and a DA Form 4187 (Personnel Action) signed by the commander.  

46.  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 that they are unable to perform normal military duties in their MOS/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 ILD.

47.  The Procedural Guidance further states that activated RC Soldiers who require retention beyond their release from active duty date may be extended on active duty under proper Title 10 authority.  If the treating physician determines that the Soldier's treatment or medical evaluation board process will extend       30 days or more, the Soldier has two options:  (1) sign a release statement stating the Soldier declines ADME to receive medical care; or (2) consent to remain on active duty.  

48.  The Procedural Guidance further states that the unit commander where the Soldier is performing duty at the time of injury or illness or disease will ensure an LD is conducted.  An interim LD is valid for 60 days.  If the Soldier is required to remain on ADME beyond 60 days, the LD must be completed and approved prior to continuation of ADME orders.  
49.  Title 10, U. S. Code, section 12686(a) states that 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.

50.  Title 10, U. S. Code, section 1552(a) states the Secretary of the Army may correct any military record of the Army when the Secretary considers it necessary to correct an error or remove an injustice.

51.  Title 10, U. S. Code, section 1552(c) states the Secretary of the Army may pay a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his service in the Army.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that his unit put out bad information and did not know the regulations and that he insisted he was supposed to remain on active duty.  He contended it was not until he won his appeal that he found out about the ADME program.  

2.  When speaking with the LD IO, MSG N___ stated, in part, that the applicant did not apply to be put on ADME; he applied for incapacitation pay.  However, the Army Deputy Chief of Staff, G-1 Procedural Guidance for RC Soldiers on ADME Procedural Guidance stated that activated RC Soldiers who required retention beyond their release from active duty date could be extended on active duty under proper Title 10 authority.  If the treating physician determined that the Soldier's treatment or medical evaluation board process would extend 30 days or more, the Soldier had two options:  (1) sign a release statement stating the Soldier declined ADME to receive medical care; or (2) consent to remain on active duty.  

3.  If the other requirements had been properly followed (e.g., if the applicant’s unit had accepted DLI’s DA Form 2173 or completed their own LD in a timely manner and found his condition to have been incurred or aggravated ILD), then the Procedural Guidance clearly placed the onus on the chain of command to have obtained the applicant’s declination-of-ADME statement.  His unit noted that he did not apply to be put on ADME, but they did not acknowledge (if they knew) that he had to sign a release statement not to be placed on ADME.

4.  The applicant’s unit did not accept DLI’s DA Form 2173.  However, his unit did not initiate its own formal LD investigation until November 2004, when higher headquarters, evidently so his request for incapacitation pay could be processed, requested it appoint a formal LD IO to determine whether his illness was duty related or a pre-existing condition.  

5.  It appears the applicant’s unit found his medical condition (evidently the bypass surgery and subsequent removal of his sternal wires, based upon his coronary artery disease, and not his myocardial infarction) to not be ILD.  It appears his unit felt his failure to identify all his medical conditions (e.g., a transient ischemic incident in 1998) during his July 2003 physical examination, his failure to give up smoking even with a strong family history of heart disease, and his failure to heed his profile restrictions (e.g., carrying heavy suitcases and planting trees) constituted misconduct and/or willful negligence.

6.  On 29 November 2006, USAHRC changed the unit’s LD finding of “NOT IN LINE OF DUTY-DUE TO OWN MISCONDUCT” to “IN LINE OF DUTY.”  USAHRC acknowledged that the applicant had certain medical conditions and that many of his medical conditions had been known but also noted that he was presumed to be medically fit when he came on active duty for an extended period of time.  USAHRC’s determination appears to have been based upon reasonable doubt.  

7.  The applicant stated he was paid incapacitation pay in the amount of $23,570.00 for the period 10 October 2004 through 10 April 2005.

8.  The applicant’s NCOER for the period 1 September 2004 through 31 January 2005 showed his physical fitness and military bearing were rated as “Needs Improvement.”  This entry noted that he had a physical profile dated 1 September 2004 but did not indicate whether his profile hindered the performance of his duties.

9.  The applicant’s civilian doctor released him for full-time work, with no restrictions, on 1 February 2005.  However, the next available valid NCOER for the applicant was for the period 1 October 2005 through 30 September 2006.  This NCOER showed his physical fitness and military bearing were rated as “Success,” and comments included, “Led his platoon to victory in a physically challenging platoon on platoon competition.”  There is no evidence to show that the applicant appealed any of the entries on this NCOER. 

10.  ADME applies to all RC Soldiers when it is determined that they are unable to perform normal military duties in their MOS 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.

11.  There is no evidence to show that the applicant’s unit ensured he was evaluated by military medical authority until around January 2007, when the applicant stated he did only half of a drill and was then informed that he was not permitted to drill anymore until he had his Fit for Duty Board.

12.  Even though a valid NCOER for the period 1 February 2005 through           30 September 2005 is not available, it would be equitable to show that the applicant was retained on active duty in an ADME status from 10 October 2004 through 30 September 2005.  As of 30 September 2005, the applicant would have completed about 17 years and 7 months of AFS.  The incapacitation pay he received for the period 10 October 2004 through 10 April 2005 would be required to be recouped.

13.  Since the applicant’s NCOER for the period beginning 1 October 2005 indicated he was capable of performing his military duties, he would not have been eligible for retention on ADME.  It would be equitable to show he was released from active duty effective 1 October 2005.  However, it would also be equitable to show he was again placed on active duty in an ADME status effective 15 January 2007 (a date selected based upon “half a drill” in January 2007) through 7 May 2007 (the last day before he was found Fit for Duty by Madigan Army Medical Center).  As of 7 May 2007, he would have completed about 17 years and 11 months of AFS.  

14.  Regrettably, the applicant would be eligible for payment only of the back pay and allowances due as a result of his records being corrected to show he was retained on active duty for the periods 10 October 2004 through 30 September 2005 and 15 January 2007 through 7 May 2007.  Any medical benefits (i.e., payment of medical bills) due from TRICARE as a result of this correction should be payable, if not already determined to be payable as a result of USAHRC’s changing his LD status.  Leave would be accrued to the extent of 2.5 days a month.  However, as the applicant’s use of that leave is obviously precluded, the benefit of such accrual is unknown.  Reimbursement of expenses related to the sale of his house are unfortunately precluded by law.

15.  At this time, it does not appear that this records correction increases the applicant’s AFS to 18 years or more.  Therefore, at this time it does not appear that he meets the statutory eligibility criteria for retention on active duty to achieve a 20-year length of service retirement.

16.  However, after the corrections noted above are made the ARNG should calculate the applicant’s active service to determine how much AFS he had completed as of 7 May 2007.  If he had completed 18 or more years of AFS, coordination should be made to obtain for the applicant, with his approval, an active duty assignment until he completes 20 years of AFS and qualifies for a length of service retirement.

17.  There is no question of equity in not returning the applicant to DLI to complete Uzbek language training.  Had he been placed on ADME effective      10 October 2004, it would have been because he could not perform his normal military duties, which at that time consisted of being a student.  The applicant is now within 2 years of mandatory Reserve retirement.  If he were still assigned to the 341st MI Battalion, it would be a battalion decision if his return to DLI would be cost-effective.  As it is, he is no longer assigned to a unit that requires language training.

18.   The Army Board for Correction of Military Records may correct any military record of the Army when the Secretary considers it necessary to correct an error or remove an injustice.  Issuing letters of reprimand to members of the WAARNG does not constitute a records correction within the meaning of the statute.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__rtd___  __jrm___  __jjp___  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 that the State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:

     a.  showing he was retained on active duty in an ADME status from               10 October 2004 through 30 September 2005 and from 15 January 2007 through 7 May 2007; 

     b.  paying to him all back pay and allowances due as a result of the above correction with recoupment of any incapacitation pay that had been paid to him;

     c.  showing he is eligible for any medical benefits (i.e., payment of medical bills) due from TRICARE as a result of the above correction; 

     d.  showing he accrued the appropriate amount of leave as a result of the above correction; and

     e.  calculating his active service to determine how much AFS he had completed as of 7 May 2007 and, if he had completed 18 or more years of AFS as of that date, coordinating with the appropriate office to obtain for him, with his approval, an active duty assignment until he completes 20 years of AFS and qualifies for a length of service retirement.

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 that pertains to showing he completed          2 years and 7 months of active duty, sufficient to put him over the 18-years AFS point; reinstating him on active duty at this time to complete his 20 years of active duty; reinstating him at DLI to complete Uzbek language training; reimbursing him for any expenses incurred as a result of selling his house; or issuing letters of reprimand to members of the Washington Army National Guard.




__Richard T. Dunbar___
          CHAIRPERSON




INDEX

CASE ID
AR20070017175
SUFFIX

RECON

DATE BOARDED
20071220
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.
128.00
3.
100.00
4.

5.

6.