IN THE CASE OF:	  

		BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20080016623 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his 17 April 2006 release from active duty (REFRAD) be voided and that his records be corrected to show that he remained on active duty until he was retired by reason of physical disability on 28 August 2008, with entitlement to all back pay and allowances.  He also requests entitlement to retroactive billable TRICARE benefits so his medical bills can be paid.  He further requests a letter from the government explaining what happened so that he can provide an explanation to the credit bureau and future employers as to why his credit and financial situation are so "screwed up."

2.  The applicant states, in effect, that the Army knew he had serious service-connected ailments that were noted in his active duty separation physical dated in February 2006; however, he was discharged back to the U.S. Army Reserve (USAR) for a 2-year Medical Evaluation Board (MEBD)/Physical Evaluation Board (PEB) process that left him broken, only to be told that he was not retainable and that it was service-connected.  He continues by stating that he was granted a 40 percent (%) permanent disability rating and by the time he was retired he had over $50,000 in medical bills that TRICARE should have taken care of.  He also states that he should have been assigned to the Wounded Warrior Program or placed on the Temporary Disability Retired List (TDRL) as Soldiers are now done until their conditions stabilize.

3.  The applicant provides a two-page statement explaining his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his retirement orders, and the PEB proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records, though somewhat incomplete, show that he initially enlisted in the Regular Air Force on 29 January 1992 and served on active duty until he was honorably discharged in the pay grade of E-3 on 18 September 1995, due to miscellaneous/general reasons.  He had served 3 years, 7 months, and 20 days of total active service. 

2.  On 17 February 1998, he enlisted in the Washington Army National Guard (WAARNG) and served in the WAARNG until he was honorably discharged on 14 August 1999 for the purpose of accepting a commission.

3.  The applicant was commissioned as an aviation second lieutenant in the WAARNG on 15 August 1999 and on 13 July 2001, he accepted a commission as a second lieutenant in the New Mexico Army National Guard (NMARNG).  He was promoted to the rank of first lieutenant on 15 August 2001.  He was subsequently appointed as a USAR officer on 10 October 2001 and he was assigned to a troop program unit at St. Petersburg, Florida. 

4.  On 13 December 2002, he was transferred to the USAR Control Group (Reinforcement).  On 10 January 2003, he was ordered to active duty for a period of 6 months to serve as a logistics management officer with U.S. Army Aviation and Missile Command (AMCOM) at Redstone Arsenal, Alabama.  He entered active duty on 17 February 2003 and served until he was honorably REFRAD on 15 July 2003 due to completion of required service.  He was transferred to the USAR Control Group (Individual Mobilization Augmentee (IMA)).

5.  On 27 April 2004, the applicant submitted a substantive appeal for disability compensation to the Department of Veterans Affairs (VA) and he was granted a 10% disability rating for Graves Disease, effective 16 July 2003.  The applicant submitted an appeal to the VA rating decision.

6.  On 10 June 2004, the applicant contacted officials at the Human Resources Command, St. Louis (HRC-STL), MO stating that he had medical problems that do not allow him to remain an aviator and stated that he was being told that he should be discharged from the military.

7.  He was promoted to the rank of captain on 14 February 2005 and during the period 20 June to 8 July 2005, he served his annual training as an operations center shift leader at AMCOM.  The officer evaluation report (OER) he received 


essentially gave him maximum ratings and indicated that due to his superior 
performance during the relatively short period of time, he was asked to return to the command assignment in an active duty status.  His senior rater recommended that he be promoted ahead of his peers and selected for early school attendance.

8.  On 12 May 2005, the applicant was reported as a "No Show" for a mandatory physical examination.

9.  He was again ordered to active duty on 17 October 2005 and he was assigned to AMCOM.  On 18 December 2006, the HRC-STL Command Surgeon dispatched a memorandum to the applicant informing him that a review of available medical records revealed one or more medical conditions that disqualified him for retention in the USAR.  The conditions listed consisted of Thyroid Disorder Hypothyroidism, Bilateral Exophthalmos, and Anxiety Disorder.  The applicant was advised of his options and was informed that if he elected to undergo a Nondisability Review - PEB (NDR-PEB) he would be prevented from performing any active military service until the issue was resolved.  The applicant's response is not contained in the available records; however, there is information contained in his records which indicates that he informed officials at HRC-STL that his condition was duty related and that he should be considered by an MEB.

10.  On 17 April 2006, he was honorably REFRAD due to completion of required service.  He had served 6 months and 1 day of active duty during this period of service.  He was transferred to the USAR Control Group (IMA).

11.  On 16 June 2006, the VA approved his appeal and granted him a 100% disability rating for Graves Disease, effective 16 July 2003.

12.  A review of his automated records indicates that on 14 September 2006, an annotation was made that the applicant was found fit for retention at the time his physical was received.  However, it appears that the applicant provided additional information and his case was forwarded for disability processing.

13.  On 7 May 2007, the applicant was transferred to the USAR Control Group (Reinforcement) due to cogent personal reasons. 

14.  On 20 September 2007, orders were published by HRC-STL transferring the applicant to the Standby Reserve (Inactive List).  The additional instructions indicated that he would be discharged or transferred to the Retired Reserve (if 

eligible) 1 year from the effective date of the order unless he provided the Military Service Obligation (MSO) Election Form requesting to remain in the Individual Ready Reserve (IRR).  On 15 November 2007, he was transferred back to the USAR Control Group (Reinforcement).   

15.  On 14 February 2008, a PEB was convened at Walter Reed Army Medical Center (WRAMC), Washington, D.C. and it determined that the applicant's medical and physical impairment prevented reasonable performance of duties required of his grade and military specialty.  The PEB determined that he should receive a 40% combined disability rating for Hypothyroidism, Bilateral Exophthalmos, and Anxiety Disorder.  The PEB recommended that he be retired by reason of permanent disability.

16.  The applicant did not concur with the findings and recommendation of the PEB, but waived a formal hearing and submitted a written appeal.

17.  On 25 July 2008, a memorandum was dispatched to the applicant informing him that his rebuttal to the PEB findings and recommendation had been noted, that his entire case had been reviewed, and that it was the Physical Disability Agency's determination that his case was properly adjudicated.  Accordingly, the findings and recommendation were affirmed.

18.  Accordingly, the applicant was placed on the Retired List, effective
28 August 2008 with a 40% disability rating.

19.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), provides, in pertinent part, that Reserve Component (RC) Soldiers, including those serving in the Active Guard Reserve (AGR) Program, who incur or aggravate an injury, illness, or disease in the line of duty while serving on active duty pursuant to orders in excess of 30 days may request to either remain on active duty by extending their orders beyond the current expiration date or to be REFRAD and continue to receive active duty pay and allowances provided that they are declared incapable of performing their normal military duties by military medical authority.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when 

a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

21.  Army Regulation 635-40 further provides, in pertinent part, that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should have been retained on active duty or transferred to the TDRL rather than being REFRAD and transferred back to the USAR has been noted and appears to lack merit.

2.  The evidence of record suggests that the applicant was fully aware of his medical issues prior to entering active duty.  However, it was not until officials at the HRC-STL Command Surgeon's office discovered that the applicant had one or more medical conditions that would have disqualified him from entry on active duty or retention in the USAR.  As a result, action was taken to process him under the Physical Disability Evaluation System (PDES) because he should have been processed under the PDES prior to entering active duty.

3.  This is further supported by the fact that the applicant was a no-show for his mandatory physical evaluation prior to entering active duty and he had already been granted a disability rating by the VA.

4.  While the applicant believes the Army had an obligation to retain him on active duty because he had been accepted for a tour of active duty and he was undergoing medical treatment, had the applicant informed officials of his condition or taken his mandatory physical examination as scheduled, in all likelihood, he would not have been ordered to active duty and he would have been processed under the PDES earlier rather than later.

5.  Additionally, had the applicant properly informed officials at the HRC-STL of his medical condition, he would not have been called to active duty and he would still be in an inactive status while awaiting the outcome of the PDES process.  

6.  It is also noted that there is no evidence in the available records to show that the applicant attempted to remain on active duty for further treatment of his diagnosed disqualifying medical conditions once he was notified that he was being REFRAD due to completion of required service. 

7.  In any event, the applicant had an obligation to make his medical condition known to the proper officials before complying with his orders to active duty; however, there is no evidence that he attempted to do so, which further delayed his disability process.  This was further complicated by the fact that the applicant received excellent evaluations of his performance and potential, which could have led officials to presume that he was fit for retention.  

8.  Accordingly, the applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.
 
9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________X______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080016623



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ABCMR Record of Proceedings (cont)                                         AR20080016623



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