BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100010265 


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 reconsideration of the Board's denial of his previous request as follows:

	a.  reinstatement to active duty until he can obtain a new surgical appointment and complete his surgery and recuperation;

	b.  cancellation of his retirement until he has completed his surgery and recuperation;
 
   c.  restoration of pay and allowances that the Army recouped as an indebtedness prorated through 13 June 2008, the date that the unexecuted portion of his active duty orders A-06-810144 were rescinded;

	d.  promotion to chief warrant officer five (CW5), effective 1 September 2008, as per the Mobilization Table of Distribution and Allowances (MOB TDA); 

	e.  adjustment of his pay records to provide for back pay and current pay and allowances as if he had not been separated and as if he had been promoted to CW5 on 1 September 2008; and

	f.  retirement in the grade of CW5 upon completion of his surgery and recuperation.

2.  The applicant states the Board failed to consider that there were two distinct requests for extension of his Mandatory Removal Date (MRD) for medical reasons that were separated in time and different in substance.  He further states the first request for an extension of his MRD was made due to a medical finding during outprocessing, dated 21 May 2008, that was based on the diagnosis of liver lesion and it was disapproved by the Secretary of the Army.  He then states a second request for extension of his MRD was based on a diagnosis of bilateral knee osteoarthritis for which he was issued a memorandum by the Warrior Transition Unit (WTU) commander indicating he was scheduled for total knee replacement surgery on 30 June 2008.  He continues with the following statements:

   a.  He was born on 8 April 1946.  Accordingly, the Army determined that his MRD was 7 June 2008, taking into account the 60-day additional period prescribed by Title 10, U.S. Code, section 1164a.

   b.  Subsequent to several mobilized periods of active duty he was issued mobilization orders for a period of active duty to commence on 1 March 2008 and end on 28 February 2009, which would have exceeded his MRD.  Based on subsequent correspondence these orders were amended to conclude his period of active duty no later than 6 June 2008.

   c.  On 2 June 2008, orders were issued transferring him to the WTU at Fort Belvoir, VA, effective 30 May 2008, for a period of 179 days.  He subsequently reported as directed and complied with the WTU reporting procedures.  However, on 13 June 2008, he received further orders rescinding the unexecuted portion of his 2 June 2008 active duty orders retroactive to 6 June 2008.  He solicited help from the WTU commander and departed on an authorized leave pending further guidance from the WTU commander.  He further adds that on 20 June 2008, the WTU commander informed him to continue outprocessing.  He was subsequently issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 6 June 2008.

	d.  In July 2008, the Army deducted the amount of $7,399.67 from his pay which appears to be the amount he was overpaid from 7 June 2008 to 30 June 2008.  He contends he is entitled to reversal of this recoupment as well as reinstatement to active duty for the purpose of completing his previously scheduled surgery.  The Secretary of the Army had the authority to retain him on active duty until 6 October 2008, which would have been sufficient to complete the surgery and recuperate while on active duty.  He should not have to incur the expense of this costly surgery.  Additionally, since he had not secured civilian employment, it is unfair to require him to recuperate without receiving the normal active duty pay and allowances to which he believes he would have received had he not been improperly separated.

	e.  He was not treated appropriately and was improperly released from active duty with a significant unresolved medical issue.  He was denied the benefit that Congress intended when it conferred on the Secretary the power to extend an MRD by law.

	f.  He was selected for promotion to CW5 in April 2006.  If he had remained on active duty, he would have been promoted to CW5.  A MOB TDA published on or around 1 September 2008 re-designated the Human Resources Command (HRC) position he was filling as a CW5 position.  The permissible 120-day MRD extension would have carried him past not only the effective date of the MOB TDA but also the 31-day period needed to retire in the grade of CW5.

3.  The applicant provides a copy of the following documentation:

   a.  email message exchanges, dated on various dates during the period February to June 2008, regarding his approaching MRD and extension of his MRD between persons such as the applicant; WTU commander; Headquarters, Department of the Army (HQDA) G-1; HRC-St. Louis; and HRC-Alexandria;

	b.  Title 10, U.S. Code, section 1164, Warrant Officers:  separation for age;

	c.  Orders A-06-810144R, issued by HRC-St. Louis, dated 13 June 2008;

	d.  Orders A-06-810144, issued by HRC-St. Louis, dated 2 June 2008;

	e.  Memorandum for Record, subject: DeWitt WTU Provider Statement for Medical Retention Processing/Medical Retention Processing 2/Active Duty Medical Extension) (MRP/MRP2/ADME) Enrollment, dated 29 May 2008;

	f.  DA Form 3349 (Physical Profile), dated 29 May 2008;

	g.  DA Form 4187 (Personnel Action), dated 29 May 2008, MRD extension;

	h.  DA Form 4187, signed by the applicant on 20 May 2008, requesting extension of MRD;

	i.  Memorandum for Record, subject: DeWitt WTU Provider Statement for MRP/MRP2/ADME Enrollment, dated 16 May 2008;

	j.  Memorandum, subject: Request for MRP/MRP2/ADME Status for the applicant, dated 29 May 2008;

	k.  Initial WT-(RC) (MRP/MRP2/ADME) Program Checklist, dated 29 May 2008;

	l.  Orders B-04-890046, issued by HRC-St. Louis, dated 30 April 2008;

	m.  Orders C-04-807106, issued by HRC-St. Louis, dated 14 April 2008; and

	n.  DA Form 1059 (Service School Academic Evaluation Report) for Warrant Officer Senior Staff Course with the certificate of completion, dated 15 December 2006.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080017881, on 19 February 2009.

2.  The contention that the Board failed to consider there were two distinct requests for extension of his MRD for medical reasons provided by the applicant is a new argument which warrants reconsideration by the Board.

3.  His records show he was born on 8 April 1946.  He initially enlisted in the Army National Guard (ARNG) on 3 January 1966.  He was honorably separated from the ARNG on 2 January 1969 and he enlisted in the U.S. Army Reserve (USAR) on 3 January 1969.  He was honorably separated from the USAR on 2 January 1972.

4.  After a break in service, he was appointed as a warrant officer one in the Adjutant General Corps of the USAR on 23 September 1986.  He was promoted to chief warrant officer two (CW2) on 23 September 1989, chief warrant officer three (CW3) on 23 September 1995, and chief warrant officer four (CW4) on 23 September 2001.

5.  He entered active duty in support of Operation Noble Eagle on 3 March 2003 and he was assigned to the U.S. Total Army Personnel Command in a CW4 position.  He continued to receive orders for service on active duty in CW4 positions.

6.  A memorandum, subject: Retention Past MRD-Extension to Age 62 for Commissioned Warrant Officers, dated 6 December 2005, shows he requested retention in an active status after qualification for retired pay until age 62 as authorized by Title 10, U.S. Code, section 12308.  He further acknowledged that he could not be retained beyond the maximum age of 62 plus 60 days.  He was informed by officials at HRC-St. Louis that his new MRD is the last day of the month in which he turns age 62.  He requested an additional 60 days, but he was informed that the 60-day extension is granted only in special circumstances, such as medical issues.

7.  On 27 July 2006, HRC-St. Louis notified him by memorandum of his selection for promotion to CW5 by a Department of the Army Reserve Components Selection Board (RCSB) that convened on 18 April 2006.  The notification memorandum further informed him that to be promoted, he must remain in an active status, meet the time in grade requirements, be medically qualified for retention, meet weight and/or body fat standards, be assigned to a CW5 position, and complete the Master Warrant Officer Training Course (MWOTC)/Warrant Officer Senior Staff Course (WOSSC).

8.  On 11 December 2006, the applicant contacted HRC-St. Louis and requested promotion orders to CW5 be published.  HRC officials reviewed the applicant's position data to ensure he was in a valid "W5" position but his records showed he was in an Individual Mobilization Augmentee CW4 position, and as such, he was not in a promotable status.  He submitted an unrecognizable TDA for unit identification code "W6EDAA" which belongs to the U.S. Army Force Management Support Agency.  However, the TDA did not show a "W5" position in either the current or future documents.  The document was also forwarded to HRC G-1 for adjudication and it was determined to be a proposed future document.

9.  A DA Form 1059 and certificate show he successfully completed the Warrant Officer Senior Staff Course on 15 December 2006.

10.  On 22 December 2006, he was further ordered to active duty in support of Operation Noble Eagle ending on 29 February 2008.

11.  On 18 October 2007, HRC-St. Louis published Orders M-10-702757 ordering him to active duty, effective 1 March 2008, for a period of 365 days in support of Operation Enduring Freedom with a termination date of 28 February 2009.

12.  On 29 February 2008, HRC-St. Louis officials requested revocation of his mobilization Orders M-10-702757 due to the fact that he would turn age 62 on 8 April 2008 and he must be removed from active status no later than 60 days after the date in which he turns age 62.  He was subsequently notified by email that HRC-St. Louis had requested revocation of his mobilization orders with a 1 March 2008 report date due to his turning age 62 on 8 April 2008.
13.  On 29 February 2008, HRC-St. Louis published amended orders resulting in his termination date being adjusted to 6 June 2008.

14.  On 21 March 2008, he submitted a request for reassignment to the Retired Reserve by reason of maximum age in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers).

15.  On 14 April 2008, HRC-St. Louis published Orders C-04-807106, releasing him from active duty by reason of completion of 20 or more years of Reserve duty and reassigning him to the Retired Reserve on 7 June 2008.

16.  On 7 May 2008, HRC-St. Louis published Orders P05-806396 placing the applicant on the Retired List in his retired grade of CW4 effective 7 June 2008.

17.  On 20 May 2008, he signed the first of his two requests for extension of his MRD due to medical reasons.

18.  On 27 May 2008, HQDA, G-1 sent an email to the WO Career Management Officer/Professional Development Education (CMO/PDE) Manager, HRC-St. Louis, stating, "Based on evaluation by our medical policy people, who always discuss these cases with the doctors directly involved, there is NO condition that requires the Army to retain the applicant beyond his MRD due to age."

19.  On 28 May 2008, by email, the applicant was notified that his request for extension of his MRD due to medical reasons was denied by the Department of the Army (DA) G-1.  He was further notified that he must be released from active duty in accordance with his orders.

20.  On 29 May 2008, he submitted a DA Form 4187 requesting to volunteer for the Medical Retention Processing (MRP) Program and if approved, he also requested extension past his 6 June 2008 MRD for the purpose of medical treatment.

21.  On 29 May 2008, the applicant was issued a temporary physical profile that contained a "3" in the "L" portion of his PULHES (an index to the overall functional capacity of an individual).  On 29 May 2008, he was also issued a memorandum by the WTU commander informing him that he was scheduled for right knee replacement at the National Naval Medical Center, Bethesda, MD, on 30 June 2008.

22.  On 2 June 2008, HRC-St. Louis published Orders A-06-810144, ordering the applicant's retention on active duty for a period of 179 days, effective 30 May 2008 to participate in the Reserve Components Warriors in Transition MRP Program for completion of medical care and treatment.

23.  On 13 June 2008, HQDA, G-1, sent an email to the Chief of the Warrant Officer Branch Management at HRC-St. Louis indicating the applicant did not have an approved MRD deferment.  On that same date HRC-St. Louis sent an email to the applicant indicating he was required to be released from active duty no later than 7 June 2008 as he did not have an approved deferment of his MRD from the Secretary of the Army.

24.  On 13 June 2008, HRC-St. Louis published Orders A-06-810144R rescinding the unexecuted portion of active duty Orders A-06-810144, effective 6 June 2008.

25.  On 17 June 2008, U.S. Army Garrison, Fort Belvoir Orders 169-0008 show he was released from active duty, effective 6 June 2008.  The additional instructions section of the order states, "Soldier is eligible for 180 days transitional healthcare under 10 USC [Title 10, U.S. Code], section 1145 until: 20081205."

26.  Army Regulation 135-32 (Retention in an Active Status After Qualification for Retired Pay), paragraph 5, states warrant officers who are qualified for retired pay under Title 10, U.S. Code, section 12371 may be retained in an active status under Title 10, U.S. Code, section 12308 not later than 60 days after the date they become 62 years of age.

27.  Title 10, U.S. Code, section 1164 states that unless retired or separated on or before the expiration of that period, each warrant officer shall be retired or separated from his armed force no later than 60 days after the date when he/she becomes 62 years of age, except as provided by Title 5, U.S. Code,
section 8301.  The Secretary concerned may defer, for not more than four months, the separation under the above of any warrant officer if, because of unavoidable circumstances, evaluation of his physical condition and determination of his entitlement to retirement or separation for physical disability require hospitalization or medical observation that cannot be completed before the date when he would otherwise be required to be retired or separated under this section.

28.  Title 10, U.S. Code, section 14509, requires that RC officers in grades below brigadier general be removed from the Reserve Active Status List on the last day of the month in which such officers attain age 62.

29.  Title 10, U.S. Code, section 1371, provides, in effect, that a warrant officer retires, as determined by the Secretary concerned, in the permanent Regular or Reserve warrant officer grade, if any, that he/she held on the day before the date of his/her retirement, or in any higher warrant officer grade in which he/she satisfactorily served on active duty as determined by the Secretary for a period of more than 30 days.

30.  Title 10, U.S. Code, section 1406, governs non-regular service retirement and provides, in effect, that a Reserve or National Guard member who is entitled to retired pay under section 12731 of this title shall be retired in the highest grade held satisfactorily by the person at any time in the armed forces, other than in an inactive section of a Reserve Component.

31.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the USAR.  It provides that a warrant officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve Components:  be serving in an active status, be in the zone of consideration, be medically qualified, have undergone a favorable security screening, meet standards of the Army Body Composition Program, be a satisfactory participant, and serve in the higher grade in an authorized position.

32.  Table 2-3 of Army Regulation 135-155 states that WOSSC (formerly MWOTC) is not required for selection; however, the officer must possess a position vacancy coded "W5" and be a Warrant Officer Staff Course graduate before promotion to CW5.  Paragraph 2-5 of this regulation states that promotion to CW5 will be authorized only to fill vacancies rank coded "W5."

33.  Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Chapter 7 of this regulation covers removal from the active list.  It states that the provisions apply to Soldiers assigned to the Selected Reserve, the IRR, and the Standby Reserve (Active List).  Soldiers removed from an active status will be discharged or transferred to the Retired Reserve.  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.  Paragraph 7-3 of this regulation states that Soldiers not sooner removed for another reason will be removed when they reach maximum age.  Removal date will be the last day of the month in which they reach age 60 for commissioned warrant officers.

34.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, physical profiling, provides that the physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.

   a.  A physical profile designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness.

   b.  A physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations.

   c.  A profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations.  The individual should receive assignments commensurate with his or her physical capability for military duty.

   d.  A profile serial containing one or more numerical designators of "4" indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he applied for two separate extensions of his MRD for medical reasons, either of which the Secretary of the Army was authorized to grant.  He contends, therefore, that he should be repaid a portion of pay and allowances that the Army recouped as an indebtedness prorated through 13 June 2008; reinstated to active duty until completion of surgery and recuperation; promoted to CW5; provided with back and current pay and allowances as if he had not been separated and as if he had been promoted to CW5 on 1 September 2008; and retired again in the grade of CW5 after completion of his surgery and recuperation.

2.  His MRD was correctly calculated and adjusted to the date he turned 62 years of age (8 April 2008) plus the 60 additional days allowed by law to 7 June 2008.  The applicant, a senior Adjutant General warrant officer, knew or should have known the exact date of his MRD.  Therefore, the applicant was correctly released from active duty to the control of his USAR unit and he was subsequently transferred to the Retired Reserve.  There is no error or injustice.

3.  His first request for an extension beyond his MRD, dated 21 May 2008, was disapproved by the Secretary of the Army.  An email from HQDA G-1 indicated based on an evaluation by their medical policy personnel, there was no condition that required the Army to retain the applicant beyond his MRD due to age.  In addition, he was authorized healthcare for 180 days after separation.  However, on 2 June 2008 orders were nevertheless issued extending him on active duty for 179 days.

4.  On 13 June 2008, the Chief of the Warrant Officer Branch Management informed him per email that his request for extension of his MRD, dated 29 May 2008, had not been approved by the Secretary of the Army and that he was required to be removed from active duty no later than 7 June 2008 since he did not have an approved deferment of his MRD from the Secretary of the Army.  He knew on 13 June 2008 that he was no longer authorized to remain on active duty.

5.  The Secretary concerned may defer, for not more than four months, the separation of a warrant officer because unavoidable circumstances delayed the medical evaluation of an officer who is being processed under the physical disability evaluation system (PDES).  The applicant has not shown his medical problem with his knee to be due to a recent injury or sudden trauma of such a nature or severity that it would meet the exceptional circumstances provided for by the intent of the law in regards to the Secretary of the Army.  Neither of his medical conditions were medically disqualifying for retention.  Since the applicant did not have an approved deferment of his MRD, he was required to be released from active duty not later than 7 June 2008.  As such, there is no error or injustice.

6.  With respect to the recoupment of indebtedness, on 13 June 2008 he was sent an email informing him that his orders were being rescinded.  HRC-St. Louis published Orders A-06-810144R rescinding the unexecuted portion of active duty Orders A-06-810144, effective 6 June 2008.  As such, it would be appropriate to:

	a.  correct item 12b (Separation Date this Period) of his final DD Form 214 to show "20080613" instead of "20080606";

	b.  correct item 12c (Net Active Service this Period) to show "00050311"; and

	c.  restore any pay and allowances the Army recouped as an indebtedness prorated through 13 June 2008, the date that the unexecuted portion of his active duty orders A-06-810144 were rescinded.

7.  With respect to promotion to CW5, promotion was contingent upon, among other conditions, assignment to a "W5" position.  There is no evidence in the available records and he did not submit any substantiating evidence that he filled a valid "W5" position vacancy.  Therefore, he was not promoted to CW5 and he did not qualify for retirement at this grade.

8.  With respect to the adjustment of his pay records to provide for back pay and current pay and allowances as if he had not been separated and as if he had been promoted to CW5 on 1 September 2008, he is assigned to the Retired Reserve and he is entitled to non-regular retired pay.  There is no provision or justification for the applicant to receive back pay and allowances as if he had not been separated.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x_  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20080017881, dated 19 February 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting item 12b (Separation Date this Period) of his final DD Form 214 to show "20080613";

	b.  correcting item 12c of his final DD Form 214 to show  "00050311";

	c.  DFAS conducting an audit to adjust recouped pay and allowances for an indebtedness prorated through 13 June 2008; and

	d.  DFAS recalculate his retired pay based on this correction of his separation date.

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:

	a.  reinstatement to active duty until he can obtain a new surgical appointment and complete his surgery and recuperation;

	b.  cancellation of his retirement until he has completed his surgery and recuperation;
 
	c.  promotion to CW5, effective 1 September 2008; 

	d.  adjustment of his pay records to provide for back pay and current pay and allowances as if he had not been separated and as if he had been promoted to CW5 on 1 September 2008; and

	e.  retirement in the grade of CW5 upon completion of his surgery and recuperation.




      __________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)                                         AR20100010265



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ABCMR Record of Proceedings (cont)                                         AR20100010265



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