IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090013434 


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, through his Member of Congress, an active duty extension to his separation orders because on the final day of his transition leave he was involved in a motorcycle accident that left him hospitalized and temporarily disabled.  He further requests all pay and allowances from the date of his accident on 27 May 2004 to the date he was released from his doctor's care on 5 August 2004.

2.  The applicant states, in effect, through his Member of Congress, that on 27 May 2004, his last day of active duty, he was injured in a motorcycle accident when a deer entered his driving path and he collided with the deer and lost control of his motorcycle.  He states he was hospitalized on 27 May 2004 and medically released to return to duty on 5 August 2004 by his physician.

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

	a.  a  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 27 May 2004;

	b.  Orders 020-0264, dated 20 January 2004, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC;

	c.  a Wisconsin Motor Vehicle Accident Report, Number 7302573, dated 27 July 2004;

	d.  a Medical Report to Determine Unemployment Insurance (UI) Eligibility, dated 1 July 2004;

	e.  an Aurora Health Care, Occupational Health Service, Return to Work Report, dated 5 August 2004;

	f.  a DA Form 2823 (Sworn Statement) by the applicant, dated 8 September 2004;

	g.  a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 October 2004;

	h.  an Informal Line of Duty Determination memorandum, dated 14 July 2006, published by Headquarters, XVIII Airborne Corps, Fort Bragg;

	i.  a letter from U.S. Army Human Resources Command (USAHRC)-St. Louis, Office of the Surgeon, dated 27 July 2006, to the applicant's Member of Congress stating all medical bills will be reviewed for payment and processed through the TRICARE Regional Office and the Military Medical Support Office;

	j.  copies of letters between the applicant and his Member of Congress where the applicant requests support in the payment of all of his medical bills related to the accident and his payment of back pay and allowance entitlements for the period he was hospitalized and then on convalescent leave;

	k.  multiple electronic messages between a staff of the Board and the applicant, dated between 26 February 2007 and 20 August 2007; and

	l.  an event timeline with an attached matrix showing the estimated medical bills owed by the applicant and his estimated lost wages.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant executed a DA Form 71 (Oath of Office - Military Personnel) as a commissioned officer in the U.S. Army Reserve (USAR) on 31 May 1997.  His source of commissioning was from the United State Military Academy (USMA) at West Point, NY.  Upon graduation, the applicant incurred a 5-year Active Duty Service Obligation (ADSO).  The applicant was trained in and awarded an Area of Concentration (AOC) of 15A (Aviation Brach).

3.  On 27 October 2003, the applicant was offered, but did not accept, an extension on active duty in a Voluntary Indefinite status.  In declining the Voluntary Indefinite status, the applicant indicated he would separate from active duty after completing his ADSO.

4.  On 13 February 2004, the applicant was reassigned from 3rd Squadron, 299th Aviation Battalion (Attack Helicopter) to the U.S. Army Transition Center at Fort Bragg.  Orders 020-0264, dated 20 February 2004, issued by Headquarters XVIII Airborne Corps, Fort Bragg show the applicant's date of release from active duty was projected as 27 May 2004.

5.  As part of his transition out-processing and prior to starting transitional leave, the applicant was issued a DD Form 214 that shows he would be honorably released from active duty on 27 May 2004 and transferred to the USAR Control Group (Reinforcement).  His net active duty service was 6 years, 11 months, and 27 days.  Item 25 (Separation Authority) shows the entry Army Regulation
600-8-24, paragraph 2-7.  Item 28 (Narrative Reason for Separation) shows he was released from active duty by reason of completion of required active service.

6.  On 6 March 2004, the applicant's duty status was changed from present for duty to transition leave.  His DD Form 214 shows his home of record at the time of entry was Richfield, WI.  He also identified Richfield, WI as his mailing address after separation.

7.  In support of his application, the applicant provides the following evidence.

	a.  A Wisconsin Motor Vehicle Accident Report, Number 7302573, that shows he was involved in a single motorcycle accident at 0045 hours on 27 May 2004 on a public highway in WI.  The report shows he hit a deer and he was ejected from the motorcycle.


	b.  The applicant stated that he coordinated with the hospital staff who contacted TRICARE to report that he was hospitalized.

	c.  On 1 July 2004, the applicant submitted an application for unemployment insurance to the State of WI.  The applicant's treating health care professional, an orthopedic surgeon, verified that the applicant was injured on 27 May 2004.  The injuries were a left apical pneumothorax (punctured lung), left scapula fracture (shoulder blade), and fracture of the third, fourth, and fifth ribs on his left side.  The attending physician stated that the applicant could not work and he would be reexamined on 5 August 2004.

	d.  Subsequently, on 5 August 2004, the orthopedic surgeon released the applicant from medical treatment and indicated that the applicant could return to work with no limitations.

	e.  On 8 September 2004, the applicant provided a DA Form 2823 to Captain F_____, commander of Headquarters and Headquarters Company, 3rd Squadron, 229th Aviation Regiment.  In effect, the applicant stated that he struck a deer on the last active duty day when he was in a terminal leave status.  He was transported to Hartford Memorial Hospital for emergency medical treatment.  He states he was in the hospital intensive care unit and that his active duty status should have changed, and that he should have been extended on active duty on a convalescent leave status until he was medically released by his doctor.  He states he attempted to contact his former unit shortly after his accident, but his former unit was training at the National Training Center in CA.  After 4 July 2004, he successfully made contact with the Battalion S-1 requesting an extension on active duty due to his injuries and his inability to perform civilian work.  He states he received conflicting guidance and that his medical bills were not paid, causing him financial hardship.

	f.  On 13 October 2004, the company commander for Headquarters and Headquarters Company, 3rd Battalion, 82nd Aviation Regiment completed Section II of a DA Form 2173.  He stated the applicant was absent from the unit with authority from 6 March 2004 to 27 May 2004, that the applicant was on active duty, and that he struck a deer while riding his motorcycle on 27 May 2004.  He identified the applicant's injuries as broken ribs, a broken scapula, and a punctured lung.  He states the applicant was admitted to the hospital and that he was placed in the intensive care unit for treatment.  He concluded by stating the applicant returned to work on 5 August 2004.



	g.  On 23 June 2006, nearly two years later, the hospital administrator at Womack Army Medical Center on Fort Bragg, NC, completed Section I of the applicant's DA Form 2173.  The medical opinion was that the applicant's injuries on 27 May 2004 were incurred while he was in the line of duty.

	h.  On 14 July 2006, the appropriate authority acting on behalf of the Secretary of the Army determined that the applicant's injuries on 27 May 2004, the last day of his active duty service, were in the line of duty. 
	
   i.  On 27 July 2006, the command surgeon for USAHRC-St. Louis responded to the applicant's Member of Congress' inquiry requesting payment of the applicant's outstanding medical bills and unpaid wages.  The command surgeon stated that the applicant's unpaid medical bills that occurred on 27 May 2004 would be paid through a coordinated effort between TRICARE and the Military Medical Support Office.  He further stated that he could not address the applicant's issue of lost wages.

	j.  On 9 August 2006, the applicant wrote to his Member of Congress stating that he estimated he was owed $13,000.00 in back wages from the date of his accident until the date he was released from his doctor to return to work.  He further stated that his personal debt had drastically increased because he was not able to find employment while recuperating from his injuries.  He provided his Member of Congress a matrix with his letter showing his estimated medical bills and projected earnings had he been extended on active duty due to his hospitalization and convalescent status.

	k.  On 10 August 2006, the applicant's Member of Congress wrote to the command surgeon of USAHRC-St. Louis, appealing the unfavorable decision concerning the applicant's back wages.

	l.  On 11 August 2006, a representative from USAHRC-St. Louis Special Inquiries Section responded to the Member of Congress' inquiry through military channels stating that the applicant was an officer on active duty (not a mobilized member of the Reserve Component); therefore, USAHRC-St. Louis could not provide assistance and recommended the applicant seek assistance through the ABCMR.

	m.  The applicant provided electronic communications between a staff member of the ABCMR and himself during the period 26 February 2007 to 2 April 2007.  In these communications, the staff member requested additional supporting documentation and evidence to support the applicant's application.

	n.  On 1 March 2007, a staff member of the ABCMR wrote to the applicant stating he had not exhausted all administrative remedies available to him.  The staff member stated that there was no evidence the applicant had submitted a request for an Active Duty Medical Extension (ADME) for the period 27 May 2004 to 5 August 2004.

	o.  On 17 November 2008,  the applicant's Member of Congress wrote to the Department of the Army requesting the applicant receive back pay and allowances for the cited period.

	p.  31 July 2009, the applicant again sought assistance from his Member of Congress because he still did not have a resolution on his request for back pay and allowances.

8.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the policies and procedures governing the transfer and discharge of Army officer personnel.  It provides, in pertinent part, that an officer may be released from active duty upon expiration of their active duty service commitment.  Applications for release from active duty should be submitted not earlier than 12 months or not less than 6 months before the desired release date or beginning date of transition leave, whichever is the earliest.

9.  Army Regulation 600-8-10 (Leave and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences.  In pertinent part, transition leave (formerly call terminal leave) is a chargeable leave granted together with transition from the Service, including retirement.  The unit command or designee is the approval authority for transition leave requests.  Leave will be terminated at 2400 hours on the day of transition (concurrent with transition).  It may also end when military personnel report to a hospital or upon death. 

10.  Army Regulation 600-8-6 (Personnel Accounting and Strength Reporting) prescribes, in pertinent part, the policies and mandatory operating tasks for personnel accounting and strength reporting for the U.S. Army Military Personnel System.  It provides the rules governing changing the duty status of military personnel with a DA Form 4187 (Personnel Action) to support absences and return to duty which impact strength accounting, pay entitlements, and other administrative actions.  Forms made retroactive will reflect the actual effective date of the duty status change and the reason for late preparation.  When reporting a hospital status, the unit commander will report the type of injury or illness, the location of the hospital, and if known, a Line of Duty preliminary determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to back pay and allowances from his first day of hospitalization on 27 May 2004 to 5 August 2004, when his orthopedic surgeon released him to return to work.

2.  The applicant has requested and applied for assistance in seeking favorable resolution to his request for payment of medical bills incurred on his final day of active duty status and all back pay and allowances while under his doctor's treatment.  The command surgeon for USAHRC-St. Louis stated in a letter to the applicant's Member of Congress on 27 July 2006 that the applicant's medical bills would be paid through appropriate medical billing offices, but he could not address the question of wages as it was not within the responsibilities of the command surgeon's office.

3.  Based on the available evidence, the applicant sustained serious physical injuries on his final active duty date while on transition leave near his home in Wisconsin.  The applicant provided numerous communications from his Member of Congress showing his due diligence starting early on the morning of 27 May 2004 when he coordinated with the civilian hospital personnel requesting they contact TRICARE for payment of his medical bills.

4.  For unknown reasons, the applicant did not immediately contact his unit of assignment, which was, in effect, the Fort Bragg U.S. Army Transition Center.  This unit was responsible for the proper personnel reporting and strength accounting for all personnel assigned to its Unit Identification Code while in a transitional status.  As the applicant's duty status was hospitalized on 27 May 2004, the unit (if it had known) should have reported his change of duty status as present for duty (transition leave) to hospital by completing a DA Form 4187 and submitting it through the appropriate command strength management offices.

5.  On an unknown date, but before 1 July 2004, the applicant was transferred from a hospital status to, in effect, a convalescent leave status when his attending physician released him, but did not medically authorize him to report to work due to the extent of his injuries.  On this date, the applicant's duty status effectively changed from hospital to convalescent leave.  Therefore, the unit should have transferred him from a hospital to convalescent leave status by preparing a DA Form 4187 with an effective date of 30 June 2004.  As the applicant's attending physician released him to report to work on 5 August 2004, a final DA Form 4187 should have been prepared changing his duty status from convalescent leave to present for duty.

6.  Once the applicant was in a present for duty status, he then should have been issued a DA Form 31 (Request and Authority for Leave) and put in a second transitional leave status.  Concurrent with these duty status changes, the applicant's separation order should have been revoked and his DD Form 214 voided until he was medically cleared to complete out-processing and start his 
remaining transitional leave.  Therefore, it would now be appropriate to amend his separation order to show that his date of release from active duty was
5 August 2004.  

7.  Based upon amending his separation order, the applicant's DD Form 214 should be corrected to show his separation date as 5 August 2004.  Finally, as his separation date was extended beyond 27 May 2004, the applicant's net active service date and net active service should be changed to reflect this extension.

8.  As a matter of equity, the applicant is entitled to all pay and allowances for this period of extended active duty service.

BOARD VOTE:

___X____  __X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending Orders 020-0264, dated 20 January 2004, to show his date of release from active duty was 5 August 2004;

	b.  correcting item 12b (Separation the Date) of his DD Form 214 to show his separation date from active duty was 5 August 2004;


	c.  correcting item 12c (Net Active Service This Period) of his DD Form 214 to show "0007  02  06"; and
	d.  paying him all pay and allowances due as a result of these corrections.



      ____________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)                                         AR20090013434



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ABCMR Record of Proceedings (cont)                                         AR20090013434



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