IN THE CASE OF:	  

		BOARD DATE:	       21 April 2009

		DOCKET NUMBER:  AR20080016920 


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, correction of his records to show that he remained on active duty from 26 September 2005 (the date his mobilization orders terminated) to 12 January 2009 (the date he was placed on the Temporary Disability Retired List (TDRL)), and restoration of back pay and allowances as a result of this correction.

2.  The applicant states that he should have undergone a medical evaluation board (MEB) prior to being released from active duty (REFRAD).  Army officials at the 121st Hospital in Seoul, Korea and 8th Army, Korea, scheduled an MEB at Madigan Army Hospital, Fort Lewis, WA, in September 2005; however, officials at the U.S. Army Human Resources Command (USAHRC) - St. Louis, MO, who had been pushing for a non-duty related PEB earlier in 2005, interfered with the process, directing all parties to wait on an extension of mobilization orders by USAHRC - St. Louis, which never materialized.  He further adds that:

	a.  officials at USAHRC - St. Louis released him from active duty on 26 September 2005 while awaiting an MEB and refused to allow him to finish the MEB/PEB process while on active duty.  To complicate the issue, he was told to use his wife’s TRICARE health benefits since he was also the spouse of an active duty servicemember.  His applications for active duty medical extension (ADME) and medical retention processing (MRP) and MRP2 were all denied; 



	b.  officials at USAHRC - St. Louis acted in an improper manner to prevent him from completing his MEB/PEB process in a timely manner.  Additionally, most staff members at USAHRC - St. Louis, Patient Administration Division, failed to assist him and/or answer his questions or work within prescribed Army regulations.  Furthermore, the correspondence he received on 18 September 2005 failed to address the basic issue of law that a member cannot be discharged while undergoing an MEB.  Additionally, USAHRC - St. Louis was the proponent of both the medical and the orders portion; and

	c.  as of 19 August 2008, his non-active duty MEB was completed at Fort Richardson, AK; however, the PEB at Madigan Army Hospital returned the action several times due to administrative errors.  He repeatedly requested to be placed on active duty orders, extending his previous orders; but this has not happened. 

3.  The applicant provides the following documentary evidence in support of his application:

	a.  various orders issued by USAHRC - St. Louis on miscellaneous dates;

	b.  various letters, dated on miscellaneous dates, to the Honorable Ted Stevens, United States Senate; the Deputy Chief of Staff, G-1; and the USAHRC - St. Louis Command Surgeon;

	c.  an extensive exchange of emails, dated on miscellaneous dates, with various member of USAHRC - St. Louis, and members of the U.S. Army Reserve (USAR);

	d.  a self-authored time line of events; 

	e.  a copy of notification of medical disqualification memorandum, issued by USAHRC - St. Louis, on 22 December 2004; 

	f.  a copy of DA Form 3349 (Physical Profile), dated 20 December 2004;

	g.  several sets of mobilization and amendment orders, issued by the USAHRC - St. Louis on various dates; 

	h.  a copy of DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 September 2005; and

	i.  a copy of Department of Veterans Affairs (VA) rating decision, dated 20 July 2008.

4.  On 18 February 2009, the applicant submitted additional documentary evidence in the form of a copy of his DA Form 199 (PEB Proceedings), dated
6 November 2008; and a copy of Orders D343-09, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., on 8 December 2008.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant’s records show he was appointed as an infantry second lieutenant in the USAR and executed an oath of office on 10 May 1985.  He subsequently entered active duty, completed various command and staff assignments, and was honorably released from active duty in the rank of captain (CPT) under the voluntary separation incentive (VSI) program and transferred to the USAR Control Group (Reinforcement) on 1 August 1994. The DD Form 214 he was issued shows he completed a total of 9 years, 6 months, and 29 days of creditable active service.  

2.  On 28 February 2003, the applicant was ordered to active duty as a member of his USAR unit in support of Operation Enduring Freedom and subsequently served in Kuwait/Iraq from 26 March 2003 to 5 March 2004.  He was honorably released from active duty to the control of his USAR unit on 2 April 2004.

3.  On 8 October 2004, the applicant requested and was voluntarily reassigned from his Troop Program Unit (TPU), the 411th Civil Affairs Battalion, Danbury, CT, to Headquarters, U.S. Army Element, Combined Forces Command, Eighth U.S. Army (EUSA), Korea, as a Liaison Officer, in an Individual Mobilization Augmentee (IMA) status.

4.  On 26 October 2004, USAHRC - St. Louis published Orders M-10-406046, ordering the applicant to report to the Army Element, U.S. Army Forces, Korea, for a period of active duty not to exceed 25 days for mobilization processing, effective 1 November 2004.  The orders stipulated that if upon reporting for active duty, the applicant failed to meet deployment medical standards, whether because of a temporary or a permanent medical condition, he would be released from active duty and returned to his home address, subject to a subsequent order to active duty upon resolution of his disqualification medical condition.  Additionally, the orders also stipulated that if he were found to satisfy medical deployment standards, he was further ordered to active duty for a period of 330 days in support of Operation Enduring Freedom, terminating on 26 September 2005.  



5.  On 26 October 2004, by memorandum, the applicant was advised that a review of his available medical records revealed one or more medical conditions (Crohn's disease and Gastroesophageal Reflux Disease (GERD)) that may have disqualified him from retention in the USAR.  He was also directed to submit additional information and/or medical records no later than 26 November 2004, to determine the severity of his medical condition.  He was further informed that during the medical determination process, a temporary medical disqualification would be placed on his medical file that would prevent him from performing any active duty until the medical issue(s) is/are resolved. 

6.  On 20 December 2004, the applicant was issued a permanent physical profile for ulcerative colitis, hiatal hernia, GERD, back pain, elbow pain, wrist pain, and knee pain.

7.  On 22 December 2004, USAHRC - St. Louis issued a notification of medical disqualification memorandum, informing the applicant that a review of the available medical records indicated his medical conditions of ulcerative colitis, hiatal hernia, GERD, back pain, elbow pain, wrist pain, and knee pain, rendered him medically disqualified from further retention in the USAR.  Along with the notification, the applicant was required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options, in accordance with Army Regulation 135-175 (Separation of Officers):

	a.  request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying service; or

	b.  request honorable discharge from the USAR; or

	c.  request consideration by a non-duty related PEB (NDR-PEB).  An NDR-PEB is limited to fitness determination; it cannot award disability compensation.  During NRD-PEB, a permanent disqualification is placed on the Soldier’s records.  This prevents the Soldier from performing any active military service until the issue is resolved.

8.  There is no indication in the applicant’s records that he completed and/or returned the election of medical disqualification memorandum within the time prescribed.  However, by memorandum, dated 21 January 2005, the Assistant Chief of Staff, CJ3, U.S. Forces Korea, notified USAHRC - St. Louis that he strongly supported the applicant’s stay on active duty as he (the applicant) was mission essential.

9.  On 18 August 2005, USAHRC - St. Louis issued the applicant his notification of eligibility for retired pay at age 60 (20-year letter).  This letter informed him that he had completed the required years of qualifying Reserve service and is eligible for retired pay upon application at age 60. 

10.  On 9 September 2005, the applicant was issued a DA Form 2173 by the 121st General Hospital, Korea.  This form indicated that the applicant suffered from aggravation of existing medical conditions during his deployment from October 2004 to September 2005 in support of Operation Enduring Freedom in Korea.  The form also states that these various conditions, including irritable bowel disease, several headaches and migraines occurring approximately twice weekly, recurrent vertigo, GERD, depression, PTSD, excessive exhaustion from obstructive sleep apnea, scoliosis, wrist and back pain and arthritis, were treated and diagnosed at the 121st General Hospital during this deployment period.  These conditions were service-related and exacerbated by service in the stressful environment of a Combined/Joint warfighting headquarters staff.  The form was signed by a staff member of the office of the Deputy Chief of Staff, CJ3, U.S. Forces Korea.

11.  On 12 September 2005, the applicant submitted a DA Form 4187 (Personnel Action) requesting an extension of his 26 October 2004 mobilization orders under the ADME program, for the purpose of undergoing an MEB.  Additionally, on 13 September 2005, he also submitted another DA Form 4187 requesting to participate in the MPR2 for the purpose of completing medical care and/or physical disability processing.  His record is void of any approval/disapproval memoranda of these requests; however, the exchange of emails submitted by the applicant strongly suggests that both requests were disapproved.

12.  On 13 September 2005, the CJ3 official that initiated the applicant’s DA Form 2173 also reviewed it for completeness and indicated that he determined it to be "in Line of Duty [LOD].”  

13.  On 26 September 2005, while still assigned to U.S. Army Element, Combined Forces Command, EUSA, Korea, the applicant was apparently released from active duty as a result of the termination of his mobilization orders (M-10-406046) that ordered him to a period of active duty not to exceed 25 days for mobilization processing, effective 1 November 2004, and a subsequent period of 330 days in support of Operation Enduring Freedom.  He was transferred to the USAR Control Group (Individual Ready Reserve (IRR)).

14.  On 3 October 2005, by memorandum addressed to the U.S. Army Troop Clinic, Fort Richardson, the USAHRC - St. Louis Command Surgeon requested the applicant undergo an MEB due to his medical condition.  The details and circumstances of subsequent actions taken by officials at Fort Richardson are not available for review with this case.

15.  On 23 October 2006, by letter addressed to the Command Surgeon, USAHRC - St. Louis the applicant again restated his original request that his active duty orders be extended from 26 September 2005.

16.  On 31 April 2007, the applicant relocated from Korea and started a new civilian job at Fort Richardson.

17.  During the period from August 2007 to October 2008, USAHRC - St. Louis issued the applicant 22 separate travel orders, authorizing him to be in a patient status without pay for the purpose of an MEB at Fort Richardson.  His last travel orders, dated 10 October 2008, were for the purpose of attending an MEB meeting.  

18.  On 16 July 2008, an MEB convened at Elmendorf Air Force Base, AK, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant’s medical conditions of chronic PTSD; depression; Crohn's disease and irritable bowel syndrome; symptomatic hiatal hernia and GERD; obstructive sleep apnea; chronic low back pain; and severe migraine headaches, rendered him unable to fulfill the requirements of his grade and specialty.  The MEB also considered his other medical conditions of hypertriglyceridemia; neck pain; wrist pain; restless leg syndrome; right hand injury; recurrent rash on thighs; herpes simplex virus; seasonal allergies; and thoracic spine pain and scoliosis, to meet retention standards and not to be unfitting.  The MEB recommended that he be referred to a PEB.  The applicant concurred with the MEB’s findings and recommendation and indicated that he desired not to continue on active duty.  

19.  On 6 November 2008, a PEB convened at Fort Lewis and found the applicant's conditions prevented him from performing the duties required of his rank and specialty and determined that he was physically unfit due to post traumatic stress disorder (PTSD), Crohn’s disease, and migraine.  The applicant was rated under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9411 (PTSD) and granted a 50 percent disability rating, codes 7399 and 7323 (Crohn’s disease) and granted a 10 percent disability rating, and code 8100 (migraine) and granted a 10 percent disability rating.  The PEB also found his other medical conditions, including obstructive sleep apnea and chronic low back pain, not to be unfitting.  It also evaluated other conditions on his MEB but determined that those conditions met retention standards.  The PEB also recommended the applicant be placed on the TDRL with a 60 percent combined disability rating and with a TDRL reevaluation within 6 months.  
20.  On 8 December 2008, the USAPDA, Washington, D.C. published Orders D343-09, releasing the applicant from duty because of physical disability and placing him on the retired list in the rank/grade of lieutenant colonel (LTC)/O-5, effective 12 January 2009.

21.  Army Regulation 135-175 provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States (ARNGUS) and the USAR, except for officers serving on active duty or active duty training exceeding 90 days.  Chapter 2 of this regulation prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service.  An officer will be involuntarily separated without board action when the member submits a resignation in lieu of involuntary separation proceedings and the resignation is accepted by Headquarters, Department of the Army (HQDA); has less than 3 years’ commissioned service and the reason for separation is because of failure to meet the standards of a service school while attending a basic or detailed branch course due to academic or leadership deficiencies or for disciplinary reasons; or for an officer with less than three years of service since accepting appointment, is being processed for separation for not meeting medical fitness standards at the time of appointment.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

23.  Chapter 4 of Army Regulation 635-490 contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendation required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.
24.  The Deputy Chief of Staff, G-1, Warrior Transition Unit Consolidated Administrative Guidance prescribes and updates policies and guidance for the care and management of Warriors in Transition (WTs).  It states, in pertinent parts, that:

	a.  the MRP program is designed to compassionately evaluate and treat the Reserve Components (RC) WT with an “in the line of duty” incurred illness, injury, disease or an aggravated pre-existing medical condition which prevent them from performing the duties required by their specialty and/or position, to, as soon as possible, return Soldiers back to duty within their respective RC.  If a return to duty is not possible, process the WT through the Army PDES.  This program applies to outpatient and in-patient WTs currently on active duty mobilized under Title 10, U.S. Code, section 12302 partial mobilization orders for operations in support of the Global War on Terrorism (GWOT).  Soldiers on active duty in support of GWOT under another authority will be handled on a case-by-case basis.  RC components mobilized in support of GWOT are authorized continuing care in active duty (AD) status.  Once a medical authority determines that the Soldier will not be able to perform military duties in that status, or that the Soldier will not have sufficient number of days left on AD after the medical condition improves to permit a return to duty (RTD), the RC WT may be eligible for MRP.  When a Soldier is not expected to RTD within 60 days from time of injury or illness, or, if the Soldier could RTD within 60 days, but will have fewer than 120 days left on his current mobilization orders, he/she may also be eligible for MRP.  The decision for WT assignment will be made by Triad (Nurse Case Manager, Primary Care Manager, and Squad Leader) in conjunction with the Soldier and orders will be produced by USAHRC – St. Louis; 

	b.  the MPR2 program is designed to voluntarily return Soldiers back to temporary active duty, to evaluate or treat RC WT with unresolved mobilization connected medical condition that either was not identified or did not reach optimal medical benefit prior to their REFRAD.  This program applies to WTs previously REFRAD from active duty while mobilized under Title 10, U.S. Code, section 12302 partial mobilization orders for operations in support of the GWOT.  Soldiers previously on active duty orders in support of GWOT under another authority will be handled on a case-by-case basis.  Soldiers on active duty orders not in support of GWOT might be eligible for Active Duty Medical Extension.  A Medical Review Board (MRB) must determine that the Soldier is eligible for MRP2.  RC components mobilized in support of GWOT are authorized continuing medical care while in AD status.  The MRP2 program is designed to address the recall of RC Soldiers with documented unresolved mobilization connected medical conditions.  The Army will voluntarily recall to temporary active duty 

status, a WT with mobilization connected LOD medical issue to evaluate or treat the illness, injury or disease.  A Soldier is eligible with a documented LOD "yes," documented unresolved medical issues, and a completed application submitted through the current chain of command.  The RC Soldier has six months from the date of REFRAD to submit his application.  The Soldier must still be a member of the Selected Reserves or the IRR.  HQDA, G-1 is authorized to grant exceptions to policy.  The decision for WT assignment will be made by Triad in conjunction with the Soldier and orders will be produced by USAHRC - St. Louis.

	c.  The ADME program is designed to voluntarily place Soldiers on temporary active duty, to evaluate or treat RC WT with in LOD service-connected medical conditions or injuries, and to return Soldiers back to duty within his or her respective RC as soon as possible.  If return to duty is not possible, process the Soldier through the Army PDES.  The medical condition incurred or aggravated must have occurred while in an Inactive Duty Training (IDT) or non-mobilization active duty status and medical care will extend beyond 30 days.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his mobilization orders that ordered him to active duty for a period of 330 days (1 November 2004 to 26 September 2005) should be extended to 12 January 2009 with entitlement to back pay and allowances.  He contends that he should not have been released from active duty until his MEB/PEB was completed.

2.  The evidence of record shows that on the same day the applicant was ordered to active duty (26 October 2004), he was also advised that a review of his available medical records revealed one or more medical conditions that may have disqualified him from retention in the USAR.  He was also directed to submit additional information and/or medical records no later than 26 November 2004, to determine the severity of his medical condition.  He was further informed that during the medical determination process, a temporary medical disqualification would be placed in his medical file that would prevent him from performing any active duty until the medical issue(s) is/are resolved. 

3.  The 25-day rule applies to RC Soldiers mobilized in support of the GWOT.  Soldiers mobilized for GWOT-connected contingency operations who fail to meet medical or/and dental deployment standards (because of a temporary or permanent pre-existing medical or/and dental condition) will be identified within the first 25 days of mobilization, REFRAD, returned to their prior Reserve status, and returned to their home address.  Administrative processing of REFRAD orders, Soldier out-processing, and return to home of record must be completed no later than 30 days from the Soldier’s mobilization-date (M-date).  They are subject to a subsequent order to active duty as a replacement upon resolution of the medical condition.  It is the responsibility of the returned Soldier’s Reserve Component to address the medical condition that prevents deployment. 

4.  The applicant was not medically qualified for active duty and was accordingly notified.  It is unclear why REFRAD orders were not published to return the applicant to his Reserve unit as his medical disqualification would have been placed in his medical file and would have prevented him from performing any active duty until the medical issue(s) was/were resolved.  It appears that because the applicant was already assigned to EUSA, Korea, and because his mobilization orders assigned him to the U.S. Forces, Korea, it was assumed that he would return to his previous IMA position.  

5.  The evidence of record also shows that the applicant was issued a notification of medical disqualification memorandum, informing him that a review of the available medical records indicated his medical conditions rendered him medically disqualified from further retention in the USAR.  Along with the notification, the applicant was required to acknowledge the notification and elect one of three options (Retired Reserve, Honorable Discharge, or NDR-PEB).  There is no evidence in the applicant's records and the applicant did not provide any evidence that he made a decision.  However, it is acknowledged that the applicant was later considered by an MEB and a PEB that resulted in his placement on the TDRL, indicating that the Army did, finally, determine that his medical conditions were duty-related. 

6.  With respect to the applicant's ADME, the applicant did not qualify for this program because he was mobilized.  By rule, Soldiers not eligible for the ADME program include Soldiers with a medical treatment plan that will not extend beyond 30 days; Soldiers who have initiated, but not completed, elective medical courses of treatment (these individuals should be released from active duty or IDT status and instructed to see their civilian providers for further care); Soldiers currently on active duty for, or already REFRAD from, contingency operations if this injury, illness, or disease is connected to the mobilization period; or pre-existing medical conditions that a Soldier was REFRAD from a mobilization order within the first 30 days of mobilization under the Army's 25-day Policy.

7.  With respect to the applicant's request for MRP, the MRP program came on line on 6 March 2004.  The program was established to eliminate the pressure on the ADME and better serve the RC Soldiers mobilized in support of the GWOT contingency operations who are wounded, incur an injury, or aggravate a previous illness or disease in the line of duty.  However, by rule, Soldiers mobilized under Title 10, U.S. Code, section 12302 partial mobilization orders who are REFRAD during the first 30 days of mobilization under the Army's 25-Day Policy are not eligible for MRP. 

8.  With respect to the MPR2 program, the evidence of records shows that the applicant did not qualify for this program.  The intent of the MRP2 Program is to return voluntarily to active duty for specific medical purpose, Soldiers with unresolved mobilized-connected medical conditions that were either not identified or did not reach optimal medical benefit prior to their release from active duty (REFRAD).  The MRP2 program authorizes the temporary return to active duty status for MRP of RC Soldiers previously mobilized in support of the GWOT. Under MRP2, Soldiers may voluntarily return to active duty specifically for medical evaluation/treatment and, if necessary, processing through the PDES for injury, or disease incurred in, or for preexisting medical conditions aggravated in the line of duty during their previous period of mobilization in support of GWOT.  This program applies only to Soldiers with documented unresolved mobilization connected medical conditions who were previously mobilized in support of GWOT, who have already been REFRAD, and who are still members of the Army Selected Reserve or the IRR.  RC Soldiers mobilized in support of GWOT may apply for MRP2 if they fall into one of the following periods of eligibility:

	(1)  REFRAD on or between 1 January 2003 and 28 April 2006. Soldiers in this category have six months from 28 April 2006 to make application to the MRP2 program.  Application packets must be postmarked no later than
28 October 2006; and 

	(2)  Soldiers who REFRAD after 28 April 2006 have six months from their date of REFRAD to make application to the MRP2 program.  Application packets must be postmarked no later than six months from the date of REFRAD.

9.  The evidence of record also shows that the applicant was provided with assistance and support as evidenced by the extensive email exchange with various individuals in an attempt to assist the applicant in resolving his medical issues.  Furthermore, contrary to the applicant's contention that officials at USAHRC - St. Louis tried to undermine his efforts, the evidence of record shows that USAHRC - St Louis published 22 travel orders, a notable administrative effort, culminating in his PEB that ultimately placed him on the TDRL.  His MEB/PEB that ultimately led to placing him on the TDRL is partially a result of  the efforts and coordination of various officials within and outside USAHRC, throughout several geographical locations.  It appears that the applicant received maximum support and assistance from various agencies and/or medical departments throughout the Army.  There is no evidence that any officials attempted to undermine him or take away his entitlements.

10.  The applicant was not involuntarily separated as that term is described in the governing regulation.  He was not separated for cause.  He was merely released from active duty upon the completion of his term of mobilization. 

11.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.


															XXX
      ________________________
               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)                                         AR20080016920



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ABCMR Record of Proceedings (cont)                                         AR20080016920



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