IN THE CASE OF:	  

		BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20110023154 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the following corrections to the applicant's records:

* reinstatement on active duty from 1 May 2006 to 29 August 2011
* reimbursement of any Reserve Component (RC) TRICARE premiums he was required to pay once he was released from active duty
* service credit in the form of retirement points during this period
* voidance of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) issued during this period
* voidance of his National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) during this period
* issuance of a single DD Form 214 to cover the entire period of service
* amendment of his discharge from active duty to a medical discharge

2.  Counsel states:

	a.  The applicant was recently granted a disability retirement through the Physical Disability Evaluation System (PDES) in June 2011 with an 80-percent disability rating and he was medically retired on 29 August 2011.  He had been severely injured in an Apache helicopter crash in Afghanistan in 2007.  His disqualifying injuries included post-traumatic stress disorder (PTSD) at 50 percent, residual of hyoid trauma at 30 percent, and chronic neck and throat pain at 20 percent.

	b.  He was injured while flying a combat mission in Afghanistan in August 2007.  The serious nature of his injuries was not fully understood until well after he had been released from his deployment.  Prior to his discharge, he was placed on a series of continuous active duty for special work (ADSW) orders from 10 April 2008 to 31 December 2009.  He was then placed in a series of confusing duty statuses from 1 January 2010 until his medical discharge.

	c.  He often went long periods of time with no pay.  Retroactive payments could not and did not make him whole.  His family would have been left without medical insurance for 15 months if he and his wife did not make the premium payments for TRICARE Reserve.  These payments were often made in months when no pay was received until months after the fact.  The financial and emotional harm to his family was extreme.  The way his personnel status was handled was shameful.  No combat-injured Soldier should have been treated in such an uncaring way.  The amount of paper generated by multiple confusing orders made it difficult to create a comprehensive accounting of his pay.

3.  Counsel provides:

* Department of Veterans Affairs (VA) rating decision
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 ending on 8 April 2008
* NGB Form 22, ending on 29 August 2011
* NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement)
* line-of-duty determination memoranda
* DA Forms 2173 (Statement of Medical Examination and Duty Status)
* Orders 101-131, dated 10 April 2008
* Orders 274-117, dated 30 September 2008
* amendment Orders 048-143, dated 17 February 2009
* Orders 261-118, dated 18 September 32009
* amendment Orders 264-168
* DA Form 3349 (Physical Profile)
* Orders 214-111, dated 2 August 2010
* amendment Orders 222-116, dated 10 August 2010
* Orders 222-149, dated 10 August 2010
* Orders 223-103, dated 11 August 2010
* Orders 223-104, dated 11 August 2010
* Orders 223-105, dated 11 August 2010
* multiple leave and earnings statements
* Orders D196-04, dated 15 July 2011 (retirement orders)
* Orders 241-206, dated 29 August 2011
* memorandum, dated 25 June 2010, subject:  Request for Medical Retention processing
* DA Form 4187 (Personnel Action)
* Orders 076-416, dated 14 April 2006
* letter from the VA 
* VA Progress Notes
* DA Form 2796 (Post-Deployment Health Assessment)

4.  Counsel provided the following additional documents on 6 February 2012 in the form of an addendum to the original application:

* multiple Standard Forms 600 (Chronological Record of Medical Care)
* medical recommendation for flying duty
* DA Form 2173
* email exchange
* three photographs of the crash area

CONSIDERATION OF EVIDENCE:

1.  After having had previous enlisted and commissioned officer service, the applicant was appointed as a Reserve warrant officer in the AZARNG and executed the oaths of office on 19 August 2005.  He entered active duty on 5 October 2005 and completed the AH-64 Attack Helicopter Qualification Course. He was honorably released from active duty on 30 January 2006.  He was issued a DD Form 214 that captured his 3 months and 26 days of active service.

2.  On 21 February 2006, he was awarded military occupational specialty (MOS) 152H (AH-64 Helicopter Pilot) and he was promoted to chief warrant officer two (CW2) on the same date.  He was assigned to Company C, 1st Battalion, 285th Aviation Regiment.

3.  He was ordered to active duty for mobilization on 1 May 2006 in support of Operation Enduring Freedom for a period not to exceed 730 days.  He served in Afghanistan from 22 January 2007 to 28 January 2008.  On 2 November 2007, the AZARNG issued him a Notification of Eligibility for Retired Pay at Age 60 
(20-year letter).

4.  He was honorably released from active duty on 9 April 2008 to the control of his state by reason of completion of his required active service.  His DD Form 214 shows he completed 1 year, 11 months, and 9 days of creditable active service during this period.

5.  On 10 April 2008, the AZARNG published Orders 101-131 ordering him to ADSW from 10 April 2008 to 30 September 2008 by authority of Title 32, U.S. Code, section 502.  He was attached to the Joint Force Headquarters, AZARNG, for administration, training, and pay.

6.  In June 2008, several DA Forms 2173 were created in relation to the applicant's aircraft crash on 3 January 2007.  Each DA Form 2173 has a memorandum signed in August or September 2008 by an official of the NGB confirming a determination that he was injured in the line of duty (LOD).  These forms show he was involved in a helicopter crash and:

* a metal plate hit him in the neck
* the crash caused him bilateral knee contusions
* he now has mild to lower back pain

7.  On 30 September 2008, he was again ordered to ADSW by authority of Title 32, U.S. Code, section 502(f), from 1 October 2008 to 31 March 2009.  He was assigned to the Joint Force Headquarters to assist with training for pre-deployment.  His orders were later amended to show a termination date of 30 September 2009 vice 31 March 2009.

8.  On 6 January 2009, he was issued a temporary physical profile for trauma to the throat secondary to an aircraft crash.  The profile stated he was pending surgical correction of the hyoid bone dislocated secondary to trauma to the throat sustained in an aircraft crash in a combat zone.

9.  On 1 February 2009, he was selected for retention in the ARNG for a period of 2 years by the AZARNG Selective Retention Board.

10.  On 18 September 2009, the AZARNG published Orders 261-118 ordering him to full-time national guard duty for operational support (FTNGD-OS) from 1 October 2009 to 31 December 2010 by authority of Title 32, U.S. Code, section 502(f) (later amended to change the ending period to 31 December 2009).

11.  On 13 October 2009, he was issued a permanent physical profile for a closed fracture and dislocation of the hyoid bone, PTSD, and sleep apnea.  The profile stated, "Recommend MEB [medical evaluation board] – unfit for retention [in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-39e, 3-41c(1), and 3-33c]."
12.  On 6 December 2009, he was issued a permanent physical profile for PTSD and sleep apnea.  The profile indicated he was unfit for retention in accordance with paragraphs 3-39e, 3-41c(1), and 3-33c of Army Regulation 40-501.

13.  On 31 December 2009, he was honorably released from active duty by reason of completion of his required active service.  His DD Form 214 shows he completed 1 year, 8 months, and 21 days of active service during this period.

14.  On 14 January 2010, the VA awarded him service-connected disability compensation for various conditions effective 1 January 2010 at the rates indicated below:

* sleep apnea, 50 percent
* PTSD, 30 percent
* mild degenerative arthritis (lower back), 20 percent
* hypertension, 10 percent
* traumatic brain injury (TBI), 10 percent
* small disc protrusion cervical spine, 10 percent
* tinnitus, 10 percent
* left posterior scalp depressed scar, 10 percent
* medial meniscal tear, left knee, 0 percent
* dislocated hyoid bone (throat bone), 0 percent
* scar, bridge of nose, 0 percent
* scar, right anterior shin, 0 percent

15.  On 1 May 2010, he was issued a permanent physical profile for PTSD, neck pain, TBI, cervical disc, chronic knee pain, thoracic disc, and tinnitus.  The entries were made based on his VA rating.

16.  On 2 August 2010, the AZARNG published Orders 214-111 ordering him to FTNGD-OS from 1 July to 30 September 2010 by authority of Title 32, U.S. Code, section 502(f).  This period of active duty was amended to show 12 February 2010 to 31 July 2010.

17.  On 10 August 2010, he was issued a series of retroactive orders of short durations for the purpose of incapacitation, medical appointments, operational support, and other reasons in January and February 2010.

18.  On 1 September 2010, a VA official submitted a medical document detailing the applicant's medical conditions as chronic neck pain, chronic low back pain, left knee internal derangement, mild TBI, PTSD, obstructive sleep apnea, hypertension, and impaired fasting glucose.

19.  Counsel submitted a DA Form 4187, dated 1 October 2010, that shows the applicant requested entry into the Medical Readiness Processing 2 (MPR2).  However, it is unclear if this request was submitted, supported, or acted upon.

20.  His narrative summary dictated on 26 January 2011 shows he underwent various evaluations, tests, consults, referrals, x-rays, images, and other medically-related studies and/or procedures.  The narrative summary shows:

	a.  He was involved in a helicopter crash in Afghanistan on 13 August 2007.  His body armor plate struck his throat and he had been in pain since.  He also experienced periodic episodes of loss of voice.  He saw many doctors and surgeons culminating in his referral to the Mayo Clinic.  Doctors concluded he had musculoskeletal tension dysphonia with an extremely tight thyrohyoid space. 
Therapy was recommended, but it did not relieve the pain.

	b.  He also suffered cervical and thoracolumbar injuries.  As his pain worsened, a magnetic resonance image showed a diffuse pattern of degenerative disc disease extending from the C2-C3 down to the C6-C7.  He also developed sleep apnea after the crash.  A sleep study confirmed this diagnosis and he had used continuous positive airway pressure treatments.  Furthermore, he developed left knee pain, hypertension (diagnosed in 2006), tinnitus, and classical migraines.

	c.  He was currently in an incapacitation status and exercised regularly on a stationary bicycle.  He was unable to walk very far because walking caused him neck discomfort and loss of sensation to his feet.

	d.  He complied with all medical directives.  The medications he was obliged to take rendered him unable to fly.  His condition was stable but the prognosis was that although his condition may deteriorate, there was little likelihood it would improve.

	e.  His final diagnosis was that he failed to meet retention standards of Army Regulation 40-501 for PTSD, recurrent dislocation of hyoid bone with chronic pain and intermittent loss of voice, and painful degenerative disc disease of the cervical and lumbar vertebrate.  He was also diagnosed with the medically acceptable conditions of cognitive disorder, hypertension, tinnitus, chronic left knee pain, sleep apnea, and migraines.

21.  On 24 June 2011, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage), he was granted a disability rating for the following:

* code 9411 – PTSD, 50 percent
* codes 6599/6520 – residual of hyoid trauma, 30 percent
* codes 5299/5237 – chronic neck and throat pain, 20 percent

22.  The PEB recommended the applicant's placement on the Temporary Disability Retired List (TDRL) by reason of temporary disability at a combined rating of 70 percent with reexamination during March 2012.  He concurred and waived his right to a formal hearing of his case.  The PEB also considered his other condition of degenerative disc disease, but did not find it unfitting and was therefore not rated.

23.  Throughout the disability process, the applicant was counseled and informed of his rights at each step.  His counseling culminated on 25 June 2011 when he was counseled regarding his medical condition, the findings, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

24.  The U.S. Army Physical Disability Agency published Orders D196-04, dated 15 July 2001, releasing him from duty because of physical disability incurred as a result of injury while entitled to receive basic pay and placed him on the TDRL in the grade of CW2 effective 29 August 2011 by reason of temporary disability in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

25.  On 29 August 2011, the AZARNG also published Orders 241-606 that show he was honorably discharged from the ARNG on 29 August 2011 in accordance with National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions), paragraph 10-2a(11), by reason of not being medically qualified for retention.

	a.  His NGB Form 22 shows he completed 6 years and 11 days of ARNG service during this period (19 August 2005-29 August 2011) and a total of 25 years and 4 months of service for retired pay.

	b.  His NGB Form 23B shows he completed 21 qualifying years of service toward non-Regular retirement as of 30 April 2007.  An updated and accurate breakdown of his retirement points is not available for review with this case.

26.  On 31 August 2011, NGB published Special Orders Number 203 AR withdrawing Federal recognition and transferring him to the Retired Reserve.

27.  An advisory opinion from the NGB was received on 2 November 2012 in the processing of this case.  NGB recommended disapproval of the applicant's request and stated:

	a.  The applicant was medically retired on 29 August 2011 following the results of a PEB.

		(1)  He requests correction of his personnel records to place him on continuous active duty from the date of his mobilization on 1 May 2006 through his retirement date of 29 August 2011.

		(2)  He seeks compensation (pay/benefits/retirement credit) as a result of the requested adjustment to place him on continuous active duty orders.

		(3)  He seeks reimbursement for TRICARE premiums he made while not covered (primarily as a result of entitlement to incapacitation pay during the previously mentioned time frame).

		(4)  He requests withdrawal of all previous DD Forms 214 and NGB Forms 22 related to this time period and issuance of one DD Form 214 to cover the entire time period and reflect his discharge as an active duty medical discharge.

	b.  In regard to a(1) and a(2) above:

		(1)  The applicant was released from active duty on 9 April 2008 and while he identified his injuries, the AZARNG found no evidence his medical condition warranted continuation on active duty.  In order to obtain accession into the MRP2, his medical condition would have required definitive healthcare per the Army Warrior Transition Unit (WTU) Consolidated Guidance.  His injuries were well documented and he continued to receive care from the VA following release from active duty.  He was not under a physical profile at the time of his release from active duty and was deemed fit for duty; therefore, the day following release from active duty, the AZARNG placed him on ADSW orders by authority of Title 32, U.S. Code, in which he voluntarily served as the safety officer and assistant S-3 of the Pre-Deployment Training Element (PTAE).

		(2)  His orders were extended on more than one occasion and were ultimately scheduled to run through December 2010; however, these orders were revoked on or about the second week in December and reissued to show an ending date of 31 December 2009.  The AZARNG revoked/reissued the orders upon learning the applicant had received a permanent physical profile which placed him in a non-deployable status and requires an MOS Medical Review Board (MMRB).  Pursuant to AZARNG regulations, a Soldier can't serve in an ADSW status while deemed non-deployable, which he was as a result of his permanent physical profile.  Ultimately, it appears the State acted in "good faith" when it placed him on various types of orders for an overwhelming majority of the time following the end of his ADSW orders – December 2009 – until the findings of the PEB in order to assist the applicant and his family.

	c.  In regard to a(3) above, the applicant signed documentation that he and his family were not authorized TRICARE as a result of his incapacitation status.  The signed memorandum included the following statement, "You and your family are not covered by TRICARE.  Your family can not seek treatment at any military or civilian treatment facilities."  Soldiers in this status are only allowed to receive treatment for the identified injuries listed in the LOD determination(s).  As a result of the State's actions in obtaining LOD determination(s) for the Soldier's wartime injuries, the Soldier was ultimately able to receive Tier I incapacitation pay from October 2010 until the time he was medically retired on 29 August 2011.

	d.  In regard to a(4) above, reissuance of DD Forms 214 and NGB Forms 22 should be disapproved assuming the above recommendations are accepted as it would not be required.  Finally, the applicant was a member of the AZARNG and not the Active Army; therefore, his request to change his discharge to reflect an active duty medical discharge would not be authorized and should be denied based on fact.

28.  The advisory official also provided the following discussion with the opinion:

	a.  The applicant was mobilized in support of Operation Enduring Freedom on 1 May 2006 for a period not to exceed 730 days by authority of Title 10, U.S. Code.  On 13 August 2007, he sustained injuries when the helicopter he was piloting crashed into the side of a mountain in Afghanistan.  He was treated and released to duty 3 weeks following the accident; however, he continued to receive medical care for which he believed muscle strain to be the most serious concern.  During the de-mobilization process according to his State, the applicant referenced "back pain and numbness or tingling in hands or feet" on a DA Form 2796 on or about 31 January 2008 prior to his release from active duty. 
He had never had a physical profile up to that point so there was no reason to retain him on active duty.  There is no proof either way indicating that he understood what was briefed regarding medical issues during the de-mobilization process.  The State determined there was no need for "definitive healthcare" as required by the Army WTU Consolidated Guidance.  These deployment orders ended 9 April 2008.  However, the applicant's contention as of the date of this application is that he should have been retained on active duty until his deployment-related injuries were either resolved or he had been processed through the PEB.

	b.  As he was deemed fit for duty, the applicant was placed on ADSW orders as a safety officer and assistant S-3 for the PTAE the day following his release from active duty – 10 April 2008 – by authority of Title 32.  His original 1-year orders were extended on more than one occasion; however, his ADSW orders were ultimately amended to end 31 December 2009 after the AZARNG leadership was notified that the applicant had been placed on a permanent physical profile on 6 December 2009.  The AZARNG policy states that a member on ADSW must remain deployable, which the applicant was not as a result of his permanent physical profile.

	c.  The applicant's wartime injuries are well-documented and he was authorized treatment by the VA as a result of these injuries.  He continued to receive treatment for his injuries while serving in an ADSW status.  The AZARNG issued LOD determinations in two separate filings on 6 September and 25 August 2012 covering the injuries he incurred and/or suffered while deployed. 
These determinations were done to benefit the applicant to ensure long-term medical coverage of said injuries.  The applicant took advantage of this VA opportunity up until the time of his release from the military following the PEB that resulted in his medical retirement on 29 August 2011.  The LOD determinations were also a requirement for the applicant to receive incapacitation pay, which ultimately began in October 2010.

	d.  From the time the applicant's ADSW orders were amended/ended on 31 December 2009, he was ultimately placed on various types of orders after the fact to assist him and his family during the time period leading up to the final determination by the PEB.  He received incapacitation pay up until the time he was medically retired as a result of the PEB.  It would appear the State acted in "good faith" to accommodate him and his family during this time period.  Under the provisions of incapacitation (Department of the Army Pamphlet 135-381 (Incapacitation of RC Soldiers Processing Procedures)), Soldiers are not authorized to accrue leave or retirement points or receive TRICARE benefits for the Soldier/Soldier's family.

	e.  The State concurs with this recommendation.

29.  As a result of counsel's submission of an addendum in February 2012, NGB added the following advisory opinion, again recommending disapproval.  NGB states that at issue, the applicant's counsel is challenging a suggested claim as to whether or not the AZARNG had all pertinent medical information about his injuries to rightfully deny his access into the MPR2.  This addendum includes ample documentation of the applicant's injuries.  Documentation shows he attempted to enter the program following his release from ADSW at the end of December 2009; however, the application was dated September 2010 at which time he had already been placed on a permanent physical profile (received December 2009).  The second issue revolves around whether the applicant was diligent in assisting in the preparation of his MPR2 application.  The applicant claims he provided all relevant information and followed all protocol while applying for this program.

	a.  The AZARNG denied the applicant's entry into the MRP2 based on insufficient evidence/documentation related to his injuries suffered while serving on active duty in 2007.  The applicant's counsel has provided ample documentation covering his injuries while serving on active duty as well as the time period following his release from active duty.  There is no evidence that suggests the AZARNG questions the legitimacy of his injuries received from a helicopter crash in Afghanistan in 2007.  His injuries are well documented and he has been receiving care from the VA.  Equally, there is no evidence that supports any accusation(s) that the AZARNG didn't follow regulatory guidance as it relates to the applicant and the injuries he sustained.

	b.  The applicant claims he worked with his unit and various military leaders of the AZARNG and completed all required documentation for consideration for entry into the MRP2.  This issue arises because counsel believes the applicant is being held responsible for not being diligent in completing the appropriate paperwork for entry into the program.  The AZARNG does have documentation that the application was returned to the applicant with suggested adjustments/
corrections that needed to be made; however, neither side has shown evidence that these corrections/omissions were made.  All of this is irrelevant based on the requirement for entry into the program.  While there is no clear proof regarding which side ultimately created the delay, the overriding factor that prevented the applicant from entering the MRP2 was based on his permanent physical profile which ultimately led to his dismissal from ADSW.

	c.  The WTU Consolidated Guidance clearly states the MRP2, which is synonymous with WTU, is not applicable for Soldiers with a permanent physical profile who require an MMRB.  Documentation provided by the applicant indicates he was working on completing the application in or around the September 2010 time frame, at which time he had already been issued a permanent physical profile (December 2009); therefore, consideration for entry into the program was not possible and would ultimately have been denied.

	d.  In regard to counsel questioning the propriety of removing the applicant from Title 32 ADSW orders in December 2009 because he was non-deployable, the suggestion is unwarranted and was addressed in the original filing.  The AZARNG policy; Title 32, U.S. Code, section 502(f); Deputy Chief of Staff, G-1, Policy Memorandum 008-029), dated 8 August 2008, doesn't authorize non-deployable Soldiers to perform ADSW.

30.  On 5 November 2012, the applicant's counsel provided a rebuttal wherein he stated:

	a.  The applicant's case highlights the problems faced by injured Reserve Soldiers released from active duty before their injuries are fully understood.  The applicant was involved in a helicopter crash, but the full nature and scope of his injuries were not immediately apparent.  At the time, he believed his most serious injury was a muscle strain because that was what the doctors told him.

	b.  Following his release from active duty, he was placed on ADSW orders to assist other Soldiers in their mobilization.  While performing ADSW, his health began to deteriorate to the point that he was placed on a permanent physical profile which made him non-deployable.

	c.  While it is true that the AZARNG has a policy that states Soldiers on a permanent profile may not perform ADSW, what is important here is that the applicant was not injured during a skiing accident.  His physical profile resulted from injuries incurred in combat and the AZARNG's answer was to terminate his orders and send him on his way.  The record is clear in that nothing was done for the applicant from January to August 2010 when the ARNG started issuing confusing orders.  Few people can support themselves financially without any income for well over half a year.  Retroactive pay here is welcome, but it is a poor substitute for continuous employment.

	d.  The advisory opinion's reference to the incapacitation pay is written in such a way as to suggest that the applicant consented.  Incapacitation is a take or leave program.  Either sign the form or receive no benefits.  Just because the applicant signed the form, he did not forfeit his right to alternatively claim that his case should have been treated differently.

	e.  The question here is how the applicant would be treated if he had been on active duty.  Treatment of an injured Reserve Soldier should not be different.  No active duty Soldier would have been removed from active duty because of a permanent physical profile.  Yet, that is exactly what happened to the applicant.  If he had been terminated from civilian employment due to his wartime injuries, his employer would be subject to claims under the law.  Here, there was no determination that his physical profile prevented him from performing his ADSW duties.  The ARNG is ignoring the hardships caused by their actions or inaction.  The Board should reject the advisory opinion and exercise its powers to grant the applicant relief.

31.  Army Regulation 635-40 establishes the Army 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.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  The key focus for entry into the PDES is the Soldier's physical fitness at the time of separation.

32.  Army Regulation 635-40, paragraph 3-1, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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 their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.

33.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the physical evaluation board rates all disabilities using the VASRD.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

34.  Army Regulation 135-381 (Incapacitation of RC Soldiers) establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits, as well as reporting requirements on these entitlements for RC Soldiers.

	a.  Paragraph 1-6 provides that a member of the RC incurring or aggravating any injury, illness, or disease in the LOD is entitled to medical and dental care, incapacitation pay, and travel and transportation incident to medical and/or dental care, in accordance with Title 37, U.S. Code, section 204, and Title 37, U.S. Code, section 206.

	b.  Paragraph 4-1g states Soldiers are entitled to a portion of the same monthly pay and allowances as is provided to members of the Active Army with corresponding grade, length of service, marital status, and number of dependents, for each period the Soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income.

35.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge.  The DD Form 214 will be prepared for each RC Soldier as indicated:

	a.  ARNG and USAR Soldiers completing 90 days or more of continuous active duty for training, FTNGD, ADSW, temporary tours of active duty, or Active Guard Reserve (AGR) service, except as specified in another paragraph.

	b.  ARNG and USAR Soldiers mobilized under Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into Federal service under chapter 15 or Title 10, U.S. Code, section 12406, regardless of length of mobilization, when transitioned from active duty.

	c.  ARNG Soldiers separated from Title 32 AGR status to enter Title 10 AGR or other active duty status, or the reverse (for example, Title 10 AGR to Title 32 AGR status).

DISCUSSION AND CONCLUSIONS:

1.  The applicant is a member of the AZARNG.  He was mobilized on 1 May 2006 under Title 10 in support of Operation Enduring Freedom and subsequently served in Afghanistan from January 2007 to January 2008.  While deployed on 13 August 2007, he sustained injuries when the helicopter he was piloting crashed into the side of a mountain in Afghanistan.  

2.  According to the State ARNG, he was treated and released for duty 3 weeks following the accident; however, he continued to receive medical care for which he believed muscle strain to be the most serious concern.  During demobilization, he referenced "back pain and numbness or tingling in hands or feet" in a post-deployment health assessment in January 2008 prior to his release from active duty.  Since he was not under a physical profile or a definitive health reason to retain him on active duty, he was properly honorably released from active duty on 9 April 2008 to the control of the State ARNG by reason of having completed his required service.

3.  Subsequent to his release from active duty, medical documents in the form of DA Forms 2173 were recreated and forwarded to NGB for an LOD determination. 
NGB determined his injuries were in the LOD.  Meanwhile, the State ARNG placed him on active duty orders under the authority of Title 32 from 10 April 2008 – 1 day after his release from active duty – to 31 December 2009 when it was determined that he was non-deployable and could not remain on ADSW orders.

4.  Meanwhile, the VA awarded him service-connected disability for various conditions, most of which related directly or indirectly to the helicopter crash and resulting injuries.  Additionally, as his condition worsened and since an LOD determination had been made, the applicant entered the PDES.  He appears to have undergone an MEB (not available for review) which recommended his referral to a PEB.  The PEB found his conditions (PTSD, residual of hyoid trauma, and neck/throat pain) prevented reasonable performance of the duties required of his grade and military specialty.  The PEB determined he was physically unfit, rated his conditions, and recommended placing him on the TDRL.  He concurred.

5.  The applicant now requests:

	a.  placement on continuous active duty orders from the date of his mobilization on 1 May 2006 through his retirement date of 29 August 2011;

	b.  payment/credit (pay, benefits, and retirement credit) as a result of his placement on continuous active duty orders;

	c.  reimbursement for TRICARE premiums he made while not covered (as a result of being on incapacitation pay) during the previously mentioned time frame; and

	d.  voidance of all previous DD Forms 214/NGB Forms 22 related to this time period and issuance of one DD Form 214 to cover the entire time period and to reflect his discharge as an active duty medical discharge

6.  The available evidence – primarily submitted by the applicant's counsel and/or the State ARNG through the advisory opinion – shows that although he identified his injuries when he was released from active duty in April 2008, there is insufficient evidence to show his medical condition warranted continuation on active duty.  It appears he was fit for duty at the time of his release from active 

duty, as evidenced by his subsequent service on active duty in an ADSW status. In any case, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.

7.  In order to be accessed into the MRP2/WTU, his medical condition would have required definitive healthcare.  Although he continued to receive care through the VA, he was not under any physical profile at the time of his release from active duty and was deemed fit for duty.  

8.  The AZARNG placed him on Title 31 ADSW orders the day following his release from active duty.  The State ARNG extended his active duty orders on several occasions and the only reason his orders were terminated in December 2009 was because the State learned of his permanent physical profile which placed him in a non-deployable status.  According to the AZARNG, a Soldier can't serve on ADSW while deemed non-deployable, which he was as a result of his permanent physical profile.  Ultimately, it appears the State ARNG acted in good faith when it placed him on various types of orders for an overwhelming majority of the time following the end of his ADSW orders – December 2009 – until the findings of the PEB, in order to help the applicant and his family.

9.  While it is clear that he was issued multiple orders that appear to be confusing, the fact remains that he was able to receive incapacitation pay from October 2010 to August 2011 – when he retired – as a result of the State ARNG's actions in obtaining LOD determinations on his wartime injuries.  Additionally, contrary to counsels' contention, the applicant's consent to this program is not at issue here.  Nonetheless, he fully understood Soldiers under this status are only allowed to receive treatment for the identified injuries listed in the LOD determinations.  Under the provisions of incapacitation, Soldiers are not authorized to accrue leave or retirement points or receive TRICARE benefits for the Soldier/Soldier's family.

10.  Contrary to counsel's contention that the State ARNG did not treat the applicant properly in view of his wartime injuries, the evidence of record clearly shows the AZARNG completed the DA Forms 2173 documenting his injuries, completed the LOD determinations, placed him on active duty orders from 10 April 2008 to 31 December 2009, and placed on various types of orders (primarily incapacitation) in order to assist him/his family during the time period 

leading up to the final determination by the PEB.  He received incapacitation pay up until the time he was medically retired as a result of the PEB.  It appears the AZARNG acted in good faith to accommodate him and his family during this time period.

11.  With respect to his NGB Form 22, this form captures the service of an ARNG Soldier from the date of enlistment/appointment to the date of discharge.  The applicant was appointed as a warrant officer on 19 August 2005 and he retired on 29 August 2011.  His NGB Form 22 correctly captured his ARNG service and there is no need to change it.

12.  With respect to his DD Forms 214:

	a.  He was ordered to active duty on 1 May 2006 under Title 10 and he was honorably released from active duty on 9 April 2008.  He was issued a DD Form 214 that captured this period of active duty.

	b.  He was ordered to active duty on 10 April 2008 under Title 32 and he was honorably released from active duty on 31 December 2009.  Again, he was issued a DD Form 214 that captured this period of active service.

	c.  Since he was released from Title 10 active duty and entered Title 32 FTNGD, a separate DD Form 214 was issued for each period of active duty.  Consolidation of these two forms is not authorized.

13.  When he was released from FTNGD on 31 December 2009, it appears he reverted to his M-day status and he was receiving incapacitation pay.  He was no longer on active duty despite the issuance of multiple retroactive orders of short duration to active duty.

14.  Although he underwent a PEB that led to his placement on the TDRL on 29 August 2011, he was not on active duty when this occurred.  

15.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.

16.  In view of the circumstances in this case, the applicant is not entitled to the requested 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 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)                                         AR20110023154



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ABCMR Record of Proceedings (cont)                                         AR20110023154



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