IN THE CASE OF:	  

		BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120008967 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was released from active duty (REFRAD) on 15 May 2009 vice 24 March 2009.

2.  The applicant states:

	a.  He was ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(D) for the period beginning 12 April 2007 for 365 days with an end date of 10 April 2008 under orders A-02-704070, dated 20 February 2007, with administrative amendments A-02-704070A01, dated 4 April 2007, and
A-02-704070A02, dated 23 January 2008.

	b.  He was injured while serving on active duty and he was retained on active duty under the provision of Title 10, U.S. Code, section 12301(H) for the period beginning 4 April 2008 for 179 days with an end date of 29 September 2008 under orders A-04-806567, dated 8 April 2008, to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program (MRP) for completion of medical care and treatment.  Orders A-04-806567R, dated
28 April 2008, rescinded the unexecuted portion of the previous orders
A-04-806567 with an effective date of 28 August 2008.

	c.  He was retained on active duty under the provision of Title 10, U.S. Code, section 12301(H) for the period beginning 29 April 2008 for 154 days with an end 

date of 29 September 2008 under orders A-04-807982, dated 29 April 2008, to continue participation in the Reserve Component Warriors in Transition MRP for completion of medical care and treatment.  Previous orders A-04-807982, dated 29 April 2008, with an end date of 29 September 2008 were amended by orders A-04-807982A01, dated 29 August 2008, to extend the end date to 27 March 2009.  Previous orders A-04-807982, dated 29 April 2008, were further amended by orders A-04-807982A02, dated 21 February 2009, to extend the end date to 22 September 2009.

	d.  He was assigned to the Army Reserve Aviation Support Facility at Dobbins Air Reserve Base, GA to perform duties as the Safety Officer while assigned to the Community Based Warrior Transition Unit (CBWTU) and receiving medical treatment and rehabilitation following surgery.  He was required to submit weekly time and attendance records verified and signed by his site supervisor to the CBWTU Platoon Sergeant (PSG).  As of 15 May 2009, he had been reporting to duty as verified by the signed time and attendance sheets during the period in question.  On Friday, 15 May 2009, at 3:00 pm, he was sent an email from Sergeant First Class (SFC) S-----r (PSG) and another email at 3:10pm from
SFC LWF who was the U.S. Army Human Resources Command (HRC) supervisor for the CBWTU-FL.  The messages informed him he was officially off orders and it contained an attachment with a DA Form 200 (Transmittal Record) from the Transition Center, Fort Stewart, GA, dated 15 May 2009, a DD Form 214 for the period ending 24 March 2009, and REFRAD Order 121-0009, dated
1 May 2009, with an effective date of 24 March 2009.  It was not until 18 June 2009 that he received Orders A-04-807982R, dated 20 May 2009, that rescinded the unexecuted portion of previous orders A-04-807982 with an effective date of 24 March 2009.

	e.  He was serving on valid active duty orders and reporting to duty as required by the order.  On 15 May 2009, he received notification of his REFRAD with a release date backdated to 24 March 2009.  As a result, a collections action was taken by the Defense Finance and Accounting Service (DFAS) for monies paid to him for duties performed from 25 March 2009 through 15 May 2009.  His DFAS Military Leave and Earnings Statement (LES) for check dated 29 May 2009 indicated an unpaid debt balance total of $16,298.61 for wages earned while performing military duty from 25 March 2009 to 15 May 2009.  He is also a Federal Employee and he was in a leave without pay (LWOP) status while performing military duty; he is prohibited by law to perform civil service duty for pay while performing military duty for pay.  By backdating his REFRAD dated to 24 March 2009, he was not afforded the opportunity to return to his Federal job or earn wages until mid-June 2009.  His spouse had received medical care under 

TRICARE during this period of time and the payments were reversed resulting in additional out of pocket expenses.

	f.  The possible cause for injustice or error is that he was found to be fit for duty and a REFRAD date of 24 March 2009 was established; however, the documents to support the fit for duty determination and the request for early REFRAD to HRC contained numerous errors.  He was notified of the pending REFRAD on 20 February 2009 and advised the CBWTU staff of the issues, highlighting a leave error that would adversely affect his transition leave and compromise the REFRAD date.  The CBWTU was made aware of the leave issue as early as June of the previous year.  On 25 February 2009, he was issued a new DA Form 4187 (Personnel Action) to extend his orders to September 2009, at the time believing that the REFRAD date would be changed, therefore, the extension to his orders beyond 27 March 2009 (previous order end date).  The CBWTU Commander submitted a request for exception to policy to HRC on 27 March 2009 that was later denied.  An appeal to that request was submitted on 28 April and also denied.  HRC indicated that the Army Board for Correction of Military Records (ABCMR) is the appropriate forum for administrative corrections.  He was allowed to remain on orders and he continued to work during the appeal process, but he was never advised of his REFRAD date until 15 May 2009.  

3.  The applicant provides:

* Multiple orders to active duty with amendments and revocations
* Memorandum of Understanding, CBHCO - FL and Medical Holdover Duty Station
* Weekly Time and Attendance cards
* Leave documents, emails, DA Forms 31 (Request and Authority for Leave)
* REFRAD documents with emails and other documents
* REFRAD notification with emails, DD Form 214, and orders
* March through May 2009 LES

CONSIDERATION OF EVIDENCE:

1.  The applicant previously served as a Regular Army enlisted Soldier to attend Warrant Officer Candidate school.  He completed training and he was appointed 

as a U.S. Army Reserve (USAR) warrant officer with concurrent order to active duty.  He was subsequently transferred from the USAR and he was appointed as a chief warrant officer four (CW4) in the Idaho Army National Guard (IDARNG) and he executed an oath of office on 21 December 2001.

2.  He was discharged from the IDARNG on 25 March 2004 and he was transferred to the USAR Control Group (Reinforcement).  He served in a variety of assignments in the USAR.

3.  On 20 February 2007, HRC published Orders A-02-704070 ordering him to active duty for contingency operation temporary tour of active duty (COTTAD) in support of Operation Iraqi Freedom for a period of 365 days beginning on
12 April 2007 and ending on 10 April 2008.

4.  On 4 April 2007, HRC published Orders A-02-704070A1, amending Orders
A-02-704070, dated 20 February 2007, to show the period of active duty as
11 months and 30 days, including leave, vice 365 days, and the purpose as contingency operation for active duty operations support (CO-ADOS) vice COTTAD.

5.  He entered active duty on 12 April 2007.  He was assigned to the USAR Command (USARC), Atlanta, GA, with duty in Kuwait.

6.  On 27 June 2007, he executed a memorandum of understanding regarding the CBHCO-FL and Medical Holdover Duty Station.  He remained on active duty and continued to receive care while residing at home and performing duty at a local military or government facility.

7.  It appears the applicant was on convalescent leave from 18 July 2007 through 16 August 2007.  Although no DA Form 31 is available to confirm the leave, it appears he was charged with ordinary leave vice non-chargeable convalescent leave during this period as evidenced by various emails, correspondence letters, and notifications he submitted.

8.  On 8 April 2008, HRC published Orders A-04-806567 ordering him retained on active duty for 179 days beginning on 4 April 2008 and ending on
29 September 2008, to participate in the Reserve Component Warrior in Transition MRP for completion of medical processing.  He was assigned to Eisenhower Army Medical Center (EAMC), Fort Gordon, GA.

9.  On 28 April 2008, HRC published Orders A-04-806567R rescinding the unexecuted portion of Orders A-04-806567, dated 8 April 2008.

10.  On 29 April 2008, HRC published Orders A-04-807982 ordering him retained on active duty for 154 days beginning on 29 April 2008 and ending on
29 September 2008, to participate in the Reserve Component Warrior in Transition MRP for completion of medical processing.  He was assigned to the Warrior Transition Battalion, Fort Stewart, GA, attached to CBHCO-FL, with duty in Marietta, GA.

11.  On 29 August 2008, HRC published Orders A-04-807982A01, amending Orders A-04-807982, dated 29 April 2008, from 154 days ending on
29 September 2008 to 333 days ending on 27 March 2009.

12.  On 29 December 2008, his CBHCO-FL Case Manager notified him that medical authorities would begin a Functional Capacity Test and Range of Motion studies.  Upon reviewing the medical opinions, he (the applicant) would either be referred to a medical evaluation board (MEB) or REFRAD.

13.  On 9 February 2009, a Functional Capacity Evaluation report was issued.  The applicant had functional range of motion and strength for his current job in safety training.  He appeared to be fit for duty.

14.  On 21 February 2009, HRC published Orders A-04-807982A02, amending Orders A-04-807982, dated 29 April 2008, from 333 days including leave and ending on 27 March 2009 to 512 days ending on 22 September 2009.

15.  On 25 February 2009, he submitted a DA Form 4187 (Personnel Actions) requesting an extension in the MRP program.  The DA Form 4187 was not signed by his commander.

16.  He was honorably released from active duty on 24 March 2009.  His
DD Form 214 shows the following entries:

* Item 12a (Date Entered Active Duty This Period) – "2007  04  12"
* Item 12b (Separation Date This Period) – "2009  03  24"
* Item 12c (Net Active Service This Period) – "0001  11  13"

17.  On 8 April 2009, he submitted a DA Form 31 requesting transition leave from 27 April 2009 to 2 July 2009.  The DA Form 31 was not signed by his commander.

18.  On 1 May 2009, Headquarters, Fort Stewart, GA published Orders 121-0009 ordering his REFRAD, not by reason of physical disability, and assignment back to the USAR effective 24 March 2009.

19.  On 20 May 2009, HRC published Orders A-04-807982R, rescinding the unexecuted portion of active duty effective 24 March 2009.

20.  On 22 October 2009, HRC issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

21.  He submitted:

	a.  Weekly Time and Attendance Cards certified by a Duty Site Supervisor, indicating he reported to his appointed place of duty on a weekly basis from
27 March 2009 through 15 May 2009.

	b.  Multiple emails and/or correspondence related to his leave issue and attempts to resolve his issue.

22.  In the processing of this case, on 5 March 2013, an advisory opinion was obtained from the Chief, Personnel Management Command, USARC, Fort Bragg, NC.  The advisory official recommended partial approval of the applicant's request.  Approval is limited to amending his REFRAD date to
19 May 2009 and changing payment of accrued leave to zero through corrections on a DD Form 215 (Correction to DD Form 214) and payment of any entitlements not already received, as follows:

	a.  Changing accrued leave that was paid to be considered transition leave. The applicant should receive all entitlements due, minus base pay for these
48 days, as he received the base pay under accrued leave payment.  Adding these days to his service time computes to 11 May 2009.

	b.  As the applicant was informed of his removal on 15 May 2009, he should receive pay and benefits through his date of notification.  Utilizing the constructed date of 11 May 2009, as computed in subparagraph (a) above of the advisory opinion, leaves four days until the applicant was notified of his removal.  The applicant was informed by email on 15 May 2009 that included orders published on 1 May 2009 with an effective date of 24 March 2009 and DD Form 214.  Given the lack of removal documentation through 15 May 2009, there is an implied duty status; therefore, these four days should be considered as service credit and receive full pay and entitlements.

	c.  Granting the time 25 March 2009 through 15 May 2009 as being in a duty status earns the applicant an additional four days of leave that he should have been able to use.  This would make 19 May 2009 his last day of duty.

	d.  The acceptance of this recommendation will facilitate the intent of the applicant's stated desire to take transitional leave and comply with Department of the Army Personnel Policy Guidance (PPG) for Overseas Contingency Operations.  Additionally, as stated in the PPG, commanders should allow Soldiers the opportunity to use accrued leave during the mobilization period if operational constraints allow; therefore, the 48 days of leave should be counted as service credit.  It must be stated, from the evidence provided in his request, much of the applicant's service after being informed of pending release in February 2009 was related to correcting the accounting error for charged leave in August 2007.  Within the documents provided by the applicant, there is only one e-mail addressed to SFC S-----r, dated 11 June 2008, as evidence of corrective action prior to February 2009.  Additionally, the operations of the CBHCO-FL are not without error, as they failed to perform in an efficient manner in following the case management of this officer's medical status.

	e.  It is the opinion of USARC to recommend any further favorable considerations would violate the intent and purpose of the Warrior Transition Program and amount to an inappropriate use of government funds, as the applicant supplied a Functional Capacity Evaluation, dated 9 February 2009, that stated he has functional range of motion and strength for his current job in safety training.  While he, at this time, did not appear to have reached his maximum recovery, the evaluation suggested monthly therapy reassessment to upgrade his home exercise program and assistance in controlling pain symptoms.  The applicant did not provide any documents post this evaluation.  Furthermore, he was assessed into the Active Guard Reserve Program effective 25 March 2012, indicating his recovery was within the retention limits of his military occupational specialty.

23.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 20 March 2013, the applicant submitted his rebuttal.  He stated he has reviewed the advisory opinion memorandum from the USARC Personnel Management Division and discussed the opinion with the advisory official for clarification.  He provides the following comments: 

	a.  He does not concur with the opinion that approval is limited to altering his REFRAD date to 19 May 2009.  He was serving on active duty until 15 May 2009, and if the recommendation as stated throughout the opinion to change the 48 days of accrued leave to transition leave is approved, then the release date should be 2 June 2009.  He concurs with the recommendation of changing payment of accrued leave to zero and payment of any entitlements not already received.

	b.  He concurs with the recommendation of changing accrued leave that was paid to be considered transition leave and that he should receive all entitlements due.

	c.  He does not concur with the advisory opinion stating "minus base pay for these 48 days, as he received the base pay under accrued leave."  As evidenced by his LES, dated 12 June 2009 (enclosed), payment for accrued leave was collected as a debt based on the backdated REFRAD date of
24 March 2009.  LES, dated 29 May 2009, contained in his original application shows a debt incurred totaling $16,298.61 that has since been garnished as evidenced by the LES he enclosed.  He does not currently have access to his LES that shows collection of the remaining debt as shown on the LES.

	d.  He does not concur with the advisory opinion stating "adding these days to his service time computes to 11 May 2009."  As stated in paragraph 2b of the opinion memorandum, "Given the lack of removal documentation through 15 May 2009, there is an implied duty status"; therefore, his service time should have ended on 15 May 2009, not 24 March 2009 as evidenced by valid orders and time and attendance records he submitted with his application.  He contends that adding the 48 days of transition leave to his service date as of 15 May 2009 should then result in a release from active duty date of 2 June 2009, not 11 May 2009 as suggested in the opinion memorandum.

	e.  He does not concur with the opinion in whole.  Granting the 25 March 2009 through 15 May 2009 as being in a duty status does not earn him an additional four days of leave because he was on orders during that time performing duty and had already earned the appropriate days of leave.  The opinion suggests replacing the time that he was officially performing duty from 25 March 2009 to 15 May 2009 with the 48 days of leave that he earned.  He contends that this is misuse of leave and in violation of Army policy.  It is Army policy for Soldiers to use their authorized leave to the maximum extent possible and to provide the maximum opportunity for all Soldiers to take leave to minimize loss and payment of leave not taken.

	f.  He does not concur with the advisory opinion statement that "The acceptance of this recommendation will facilitate the intent of [Applicant's] stated desire to take transitional leave."  The recommendation does not facilitate the intent of his stated desires.  He will address his desires in the closing paragraph.

	g.  The stated opinion "much of the applicant's service after being informed of pending release in February 2009 was related to correcting the accounting error for charged leave in August 2007" is irrelevant as he was on duty in support of an operational mission and deployed unit.  Service is service regardless of the implied duty.

	h.  He concurs with the opinion that the operations of the CBHCO in not without error.

	i.  He does not concur with the opinion "to recommend any further favorable considerations would violate the intent and purpose of the Warrior Transition Program and amount to an inappropriate use of government funds."  He contends that it is a violation of Federal law and Army policy to deny compensation for the duty he performed while on valid orders from 24 March 2009 through 15 May 2009.  He contends it is a violation of Army policy to deny compensation of earned leave.  The primary purpose of the Warrior Transition Program is to provide outpatient care management and transition services to Soldiers who have been wounded, are ill or have been injured.  He contends that correcting the failures of the Warrior Transition Unit Command to provide for the proper execution and administrative processing of those transition services is not a violation of the program, rather the right thing to do.

	j.  He does not concur with all the comments related to functional capacity, therapy, exercise program, pain control, medical status and acceptance in the AGR program, as they are irrelevant to his case.

	k.  In closing, he would like to clarify his desires.  He wants the dates of
25 March 2009 through 15 May 2009 to reflect time in service; approval of 48 days of transition leave; payment of full pay and entitlements during this period; and correction of his DD Form 214 to reflect these desired changes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty on 12 April 2007.  Shortly after his entry, he had an illness that required him to be seen by medical authorities.  He entered the Reserve Component MRP and subsequently the CBHCO-FL.  His orders were amended and/or rescinded multiple times depending on his medical condition and/or medical progress.  It appears during his active duty, he encountered a problem with his convalescent leave being charged as ordinary leave.  As his release from active duty neared, resolving this issue was paramount in his mind because it affected his REFRAD date.

2.  In December 2008, he was notified by email that a Functional Capacity Evaluation would determine his referral to an MEB or his REFRAD.  When the 

evaluation yielded a fit for duty determination, it was not a surprise to the applicant that orders for his REFRAD were forthcoming.  Although he was honorably REFRAD on 24 March 2009 for unknown reasons, no one told him.  He continued to report to the CBHCO as directed.

3.  Aside from the fact that no one told him until after he had been officially REFRAD, it appears his REFRAD on 24 March 2009 was appropriate since there was no longer a reason to retain him for medical processing.  In other words, his REFRAD was not a secret or a surprise.

4.  However, as a matter of equity, since he continued to report to his place of duty through 15 May 2009 (thus earning four days of accrued leave from
24 March to 15 May 2009), his REFRAD orders and resulting DD Form 214 should be amended to show 19 May 2009 (as per the advisory opinion, taking into account the 4 additional days of accrued leave) with entitlement to back pay and allowances.

5.  Although in his rebuttal comments he requested his REFRAD date be changed to 2 June 2009, it appears that 19 May 2009 is the more appropriate and practical date. 

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 a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Amending Orders 121-0009, issued by Headquarters, Fort Stewart, GA, dated 1 May 2009, to show the date of his REFRAD as 19 May 2009 vice
24 March 2009;

	b.  Amending item 12b of his DD Form 214 to show the entry "2009  05  19" vice "2009  03  24";

	c.  Amending item 12c of his DD Form 214 to show the entry "0002  00  18" vice "0001  11  13"; and

	d.  Paying him any pay and allowances due as a result of these corrections.

2.  The Board further determined 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 changing his REFRAD date to 2 June 2009.



      _______ _   _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)                                         AR20120008967



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ABCMR Record of Proceedings (cont)                                         AR20120008967



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