IN THE CASE OF:	

		BOARD DATE:	  09 March 2010

		DOCKET NUMBER:  AR20090010845 


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 record to show no break in active duty service and a retroactive promotion. 

2.  The applicant states, in effect, he reported to the Wounded Warrior Program at Fort Gordon, Georgia, on 20 July 2006, in order to obtain required surgery.  He claims he was placed on the surgery waiting list and on 18 August 2006, he was granted 15 days of leave.  He states that prior to departing on leave, he was informed his surgery would not take place for approximately 6 to 8 weeks.  He claims that while on leave, he married his current wife.  He states he had no misconduct during the 3 weeks he was in the program prior to going on leave.  However, on 4 September 2006, upon returning from leave, he was informed he was released from active duty (REFRAD) and he was to return to his home Reserve unit and could receive the necessary surgery from the Department of Veterans Affairs (VA).  He claims the command justified his REFRAD based on a missed appointment with his surgeon.   

3.  The applicant further states his surgeon informed his chain of command that the appointment was made as a result of an administrative error and that the applicant had already attended an appointment.  He claims this information was disregarded by the command because his REFRAD orders had already been published while he was on leave.  He further states the command completed a counseling statement regarding a missed appointment.  He further states the first sergeant (1SG) was angry because they tried to contact him while he was on leave.  He claims that without even checking with his surgeon, the command arbitrarily and capriciously published REFRAD orders.
4.  The applicant also claims he went to legal assistance and spoke with an attorney, who was appalled at the command's failure to follow regulatory guidance or to provide him due process.  He states he also went to the Inspector General (IG) and later obtained an IG finding that indicated his due process rights were violated by the command.  

5.  The applicant claims his improper REFRAD resulted in the following negative consequences:

	a.  substantial delay in his obtaining the surgery he required; 
	b.  worsening of his medical conditions;
	c.  financial hardship due to loss of active duty pay and unit participation pay; 
	d.  strain on new marriage;
	e.  missing Army Career and Alumni Program (ACAP) briefings;
	f.  loss of Montgomery GI Bill benefits due to break in service; 
	g.  prolonged delay in promotion consideration due to medical status; and 
	h.  loss of phased out position and civilian employment opportunities.  

6.  The applicant finally states that as a result of the negative consequences that resulted due to his improper REFRAD, he is requesting correction of his record to show no break in active duty service and retroactive pay and allowances due as a result.  He also requested that he be promoted to the rank of sergeant first class (SFC), effective 3 September 2006, and back pay and allowances due as a result.

7.  The applicant provides the following documents in support of his application: 

	a.  Self-Authored Affidavit;
 	b.  Surgeon Letter, dated 6 September 2006;
	c.  VA Doctor Letter, dated 1 March 2007; 
	d.  Legal Assistance Attorney Letter, dated 12 June 2009; 
	e.  IG Letter, dated 7 November 2006;
	f.  DA Form 31 (Leave Request);
	g.  REFRAD Orders; 
	h.  DD Form 214 (Certificate of Release or Discharge from Active Duty); and 
	i.  Congressional Inquiry.  

8.  The applicant also indicates a loss of employment; however, no such document was included in the packet that arrived for Board review. 


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he has continuously served in an enlisted status in the U.S. Army Reserve (USAR) from 3 February 1998 through the present.  It further shows he was promoted to staff sergeant (SSG) on 
30 March 2002.  

2.  The applicant's Official Military Personnel File (OMPF) is void of any indication that he has been denied promotion consideration, or that he has ever applied through channels for promotion reconsideration by a Stand-By Advisory Board (STAB) due to unjust denial of consideration or material error.

3.  On 15 March 2003, while serving in the USAR, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  

4.  On 17 July 2006, U.S. Army Human Resources Command, Alexandria, Virginia (HRC-Alexandria) published Orders A-07-618200, which directed the applicant's retention on active duty for 47 days, effective 20 July 2006.  It was also directed that upon completion of this duty, unless sooner released, the applicant would return to his home and he would be REFRAD.  The orders directed him to report to Company A, Medical Retention, Fort Gordon, Georgia on 20 July 2006.  

5.  On 6 September 2006, the applicant was honorably REFRAD and returned to his USAR unit in Tampa, Florida.  The DD Form 214 he was issued at the time shows he completed a total of 3 years, 5 months, and 22 days of active military service during the period and that he was separated by reason of completion of required service.  

6.  On 19 March 2007, he reentered active duty to voluntarily participate in the Reserve Component medical holdover medical retention processing program for completion of medical care and treatment at Fort Stewart, Georgia.  

7.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) on file shows a formal PEB convened at Fort Sam Houston, Texas, on 23 October 2009, to consider the applicant's case, with the applicant and his counsel present.  Based on a review of the objective medical and personnel evidence of record and considering the medical requirements for reasonable performance of duties required by grade and military specialty, the PEB found the applicant fit for duty within the limitations of the profile.  The PEB further determined the applicant could perform his primary military occupational specialty (PMOS) of 88N (Traffic Management Coordinator) despite his diagnoses of low back pain, degenerative disease of the thoracic spine, left knee pain, right wrist pain, right knee osteoarthritis, and osteoarthritis of the right hip.
8.  The PEB further noted that the applicant's conditions were longstanding and did not preclude the applicant from performing his PMOS as evidenced by his ability to complete his deployment to Kuwait from March 2003-December 2004.  The PEB finally found the applicant was physically fit and that he should be returned to duty.  

9.  On 23 November 2009, the U.S. Army Physical Disability Agency (USAPDA) approved the findings of the PEB pertaining to the applicant, which found him physically fit to perform the duties of his office, rank, and MOS within the limits of his profile, and the PEB Proceedings were approved on behalf of the Secretary of the Army.  

10.  The USAPDA also notified the applicant that his disagreement with the findings of the PEB was noted and that his entire case had been reviewed.  He was also advised that the Agency concluded that his case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  He was further informed the findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed; and that the issues raised in his appeal were responded to by the PEB in its 16 November 2009 memorandum and the USAPDA concurred with the response provided by the PEB.  

11.  Subsequent to the PEB decision, the applicant was returned to his USAR unit where he continues to serve in an active status. 

12.  The applicant provides a letter of support from the Chief, Orthopedic Surgery, dated 6 September 2006, which indicates an appointment the applicant was scheduled to attend on 29 August 2006, for which he was determined to be a no-show was an unnecessary appointment since the applicant had already been evaluated and was waiting a date for surgery.  Punitive REFRAD based solely on the basis of noncompliance of this missed appointment was a harsh application of existing guidelines.  He also provides a letter from a legal assistance attorney, who indicates the applicant's REFRAD was unfair because there were extenuating circumstances surrounding his missed appointments.  He also provides a letter from the Fort Gordon Assistant Inspector General, which indicates an inquiry was completed which determined his REFRAD was legally sufficient; however, his claim of lack of due process was founded.  


13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth policy, standards, and procedures for the administrative separation from active duty of enlisted personnel.  Chapter 4 outlines the policy for separation due to completion of required service and states, in pertinent part, that a Soldier enlisted or ordered to active duty (AD) normally will be discharged or REFRAD on the date he/she completes the period for which enlisted or ordered to active duty.   Personnel released from AD and transferred to the USAR upon completion of the term of service for which ordered into active Federal service, or released to their Reserve Component upon completion of AD will not be discharged until completion of their reserve obligation.  There are no regulatory counseling requirements for USAR Soldiers being REFRAD and returned to their Reserve status who are not retirement eligible.  

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the Army's enlisted promotions and reductions policy.  Paragraph 1-10 identifies circumstances that place members in a non-promotable status.  Processing through the Physical Disability Processing System is not included as a circumstance that places a member in a non-promotable status and does not preclude promotion consideration.  

15.  Chapter 5 of the enlisted promotion regulation contains the policy for promotion of USAR Soldiers assigned to Troop Program Units, Army Reserve
Elements, or Multicomponent Commands or Units.  Paragraph 5-43 provides guidance on enlisted STABs.  It states, in pertinent part, that STABs will consider records not reviewed by a regular board or were not properly constituted because of a material error when reviewed by a regular board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was unjustly REFRAD and his record should be corrected to show no break in active duty service, a retroactive promotion and that he should be paid all back pay and allowances due as a result was carefully considered.  However, there is insufficient evidence to support these claims.  

2.  By regulation, a Soldier enlisted or ordered to AD normally will be discharged or REFRAD on the date the Soldier completes the period for which enlisted or ordered to active duty.  There are no regulatory counseling requirements for Reserve Soldiers being REFRAD who are not retirement eligible.


3.  The evidence of record shows the applicant was initially retained on active duty for a period of 47 days on the period of service in question, effective 20 July 2006.  It further shows he was honorably REFRAD on 6 September 2006 after completing this initial 47 day period of active duty service authorized, and was returned to his USAR TPU.  

4.  Notwithstanding the circumstances that led to this REFRAD, it appears the applicant continued to receive the medical treatment he required, and was ultimately properly processed through the PDES, which resulted in a determination he was fit for duty and did not result in a medical/disability retirement. 

5.  The PEB noted in its proceedings that the applicant's conditions were long standing and did not preclude him from performing the duties of his grade and MOS.  As a result, given the applicant received the medical treatment necessary and was properly processed through the PDES, his 6 September 2006, REFRAD does not appear to constitute an injustice that denied him benefits to which he was entitled or prevent his further service in the USAR for which he was contracted.  

6.  Further, the applicant's contention that he should be promoted because he lost a substantial period of time to be promoted was also carefully considered.  However, the evidence of record and independent evidence provided by the applicant fail to show he was ever denied promotion consideration.  Further, even had he been improperly denied promotion consideration, there is no indication that he ever requested reconsideration by a STAB through normal USAR channels. 

7.  The applicant has received all medical treatment required for his long standing injuries/illnesses, and he was properly evaluated and processed through the PDES.  As a result, given he was a contracted Reservist with no active duty service guarantee, it appears he suffered no serious injustice as a result of his 6 September 2006 REFRAD that would support granting him credit for active duty service he performed, or that would support promotion at this time. 

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.




      _______ _   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)                                         AR20090010845



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ABCMR Record of Proceedings (cont)                                         AR20090010845


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