BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120009681 


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 the orders releasing him from active duty and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 2010 to show he was retained on active duty until 6 January 2011 instead of 29 September 2010.

2.  The applicant states, in effect:

	a.  He wants active duty credit from 29 September 2010 through 6 January 2011.

	b.  Once the Army found him unfit for retention, the Army had three options:

		(1)  conduct a medical evaluation board (MEB)/physical evaluation board (PEB),

		(2)  medically retire him for service-connected disability, or

		(3)  release him from active duty if he was found fit for duty.

	c.  Because his PEB findings were not finalized on 29 September 2010, his release from active duty (REFRAD) was contrary to policy.  Until 6 January 2011, the Army lacked authority to move him from an active duty to a Reserve status.



3.  The applicant provides:

* mobilization orders
* MEB appointment
* DD Form 214 for the period ending 29 September 2010
* REFRAD orders
* PEB findings
* U.S. Army Human Resources Command (HRC) option memorandum
* Periodic Health Assessment (PHA) documents

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army and Army National Guard, the applicant was appointed as a second lieutenant in the Army National Guard on 16 July 1988.  He was promoted to lieutenant colonel on 1 August 2006.  He was assigned to the USAR Control Group (Reinforcement) on 1 May 2009.

2.  He was ordered to active duty for a period of 365 days on 30 September 2009 in support of Operation Enduring Freedom.

3.  He provided a DA Form 3349 (Physical Profile), dated 3 February 2010, which shows he was issued a permanent physical profile for depression, asthma, and hearing loss.

4.  A memorandum, dated 4 June 2010, informed him he did not meet retention standards in the USAR due to asthma, sleep apnea, and hearing loss.  He was offered four options for disposition of his case; however, his election is not available.  It appears he elected consideration by an MEB.

5.  On 24 September 2010, he was issued a permanent physical profile for asthma (mild persistent), knee pain, sleep apnea, and mild-moderate sensorineural hearing loss.  It was determined an MEB was needed.

6.  There are no Medical Retention Processing (MRP) orders in the available records.

7.  He was REFRAD on 29 September 2010 in accordance with his mobilization orders.

8.  His MEB is not available.

9.  On 20 December 2010, a PEB found him fit for duty and recommended his return to duty.  He concurred with the PEB findings on 22 December 2010.  On 6 January 2011, the U.S. Army Physical Disability Agency approved the PEB findings.

10.  He was ordered to active duty on 19 April 2011 and he was REFRAD on 17 April 2012.

11.  On 29 August 2012, he was released from the USAR Control Group (Reinforcement).

12.  In the processing of this case, a staff advisory opinion was obtained from the Medical Policy Branch, Office of the Deputy Chief of Staff, G-1, Washington, DC, which states:

	a.  Per the information provided in the Medical Operational Data System, the applicant received a permanent physical profile on 24 September 2010 with a profile serial code of "3" in one or more categories and a disposition of referral to the Disability Evaluation System (DES).

	b.  The referral to the DES on 24 September 2010 was five days prior to his REFRAD orders on 29 September 2010.  Title 10, U.S. Code, section 12301(h), allows Reserve Soldiers requiring medical care or referral to the DES to continue on active duty orders until they are returned to duty or complete the DES.  The applicant may have been retained on active duty orders to complete the board process if it had been deemed appropriate with a recommendation from his primary care provider to the Warrior Transition Command.

	c.  Not all Soldiers are retained on active duty orders to complete the DES and are frequently processed through the DES from a troop program unit (TPU) status.  Although the applicant was not retained on active duty orders to complete the DES, the board process was completed and he was found fit for duty.

	d.  Costs incurred while undergoing a duty-related board process, for attending medical appointments, and/or receiving medical care for issues related to the condition that refer a Soldier to the DES, may be reimbursable.

13.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 22 August 2012, he responded.  In summary, he states:



	a.  The statement, "Not all soldiers are retained on active duty orders to complete the Disability Evaluation System and are frequently processed through the DES from a Troop Program Units [sic] status" fails to acknowledge that he was ineligible to serve in a TPU until he was cleared by the Army MEB/PEB process.  As he has stated in his claim, an officer will be separated from active duty when found to be medically unfit, except when the officer has incurred a disability in the line of duty and is eligible for processing under the provisions of pertinent medical regulations.

	b.  The disabilities identified in the Periodic Health Assessment of March 2010 were found to be service-connected disabilities by the MEB and PEB process.  Despite the 180 days between a finding of unfitness and scheduled demobilization, the Army's failure to timely initiate the MEB/PEB process meant there was no determination prior to his scheduled REFRAD date.  Because the disabilities were service connected, the Army had a duty to ensure the disabilities were fully evaluated and treated prior to transferring the Soldier from one component to another.  The intent of the law and Army Regulations are to ensure that Soldiers with medical disabilities are not dumped into a unit unable to administratively or medically support the Soldier.  To be clear, had he been found unfit while in a Reserve Component status, he would not have been authorized to transfer to the Active Component.

	c.  Retention in the Army Reserve beyond the date of transfer apparently violates Army regulations.  The Soldier could not request a continuation of active duty without a PEB/DES determination.  Because he was awaiting an MEB examination and PEB determination at the time of his REFRAD, he was ineligible to apply for or serve in a TPU status.  The Office of the Deputy Chief of Staff, 
G-1, may be correct that members are transferred from the Active Component to a TPU status to complete the DES process, but this does not apply to him.

	d.  The Army's policy of separating unfit Reserve Component Soldiers prior to a final PEB status and dumping them into the Individual Ready Reserve (IRR) violates Army values.  The action places the Soldier in limbo, without a unit and without access to medical care until the PEB process is complete.  The Army owes a duty to disabled Soldiers to ensure they are properly evaluated and treated prior to discharge.  The Army has no problems meeting the duty for Active Component Soldiers, but does not feel the same duty for Reserve Component Soldiers.

	e.  The Army requires Soldiers to be loyal to the country, the organization, and the unit; however, the Army's decision to REFRAD him prior to the PEB determination and the G-1's stated support for this action confirms that the Army believes it owes no similar loyalty to the Soldier.

	f.  The Army requires Soldiers to perform their duties but refuses to acknowledge a similar duty to care for Soldiers, especially those disabled in the service of their country.

	g.  By transferring the Soldier to the IRR prior to ensuring the MEB/PEB process was complete, the Army disrespects the Soldier and his dual status as a citizen-Soldier.  He was placed in a status of limbo, unable to actively serve in the Reserve Component or Active Component, resulting in lost income.  In addition, because he had been identified as unfit by the military, this fact had to be communicated on all job and health insurance applications, risking a loss of health insurance coverage and employment.

14.  The Warrior Transition Unit Consolidated Guidance (Administrative) states the MRP Program applies to only Reserve Component Soldiers (not Active Guard Reserve) currently serving on active duty for contingency operations in support of the Global War on Terrorism under partial mobilization (Title 10, U.S. Code, section 12302) orders after 6 March 2004.  The Soldier must have incurred an illness, injury, or disease, or aggravated a pre-existing medical condition in the line of duty.  The military medical authority must determine a Soldier is not expected to return to duty within 60 days from the time he or she is injured or becomes ill, or if the Soldier could return to duty within 60 days, but will have fewer than 120 days beyond the expected return to duty date left on partial mobilization orders, then the Solder will be converted from partial mobilization orders to MRP orders, subject to the Soldier's consent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests active duty credit from 29 September 2010 through 6 January 2011 because his PEB proceedings were not finalized when he was REFRAD on 29 September 2010.

2.  The evidence shows he was REFRAD on 29 September 2010 in accordance with his mobilization orders.  On 20 December 2010, a PEB found him fit for duty, with final action taken on 6 January 2011.

3.  Although the governing regulation allows Reserve Soldiers to continue on active duty orders until they complete the DES, the law does not require that Soldiers be retained on active duty orders to complete the DES.  

4.  No evidence shows an appropriate medical authority determined he should be retained on active duty to complete the DES.  This appears to have been a proper response by medical/command officials toward a Soldier whose REFRAD was due and expected so as to retain valuable medical resources for those Soldiers needing treatment/evaluation not close to their REFRAD.

5.  It is acknowledged that he was REFRAD prior to completion of his physical disability proceedings.  However, the evidence shows he was processed through the DES (his medical disabilities were fully evaluated) and he was found fit for duty.  He subsequently served on active duty from 19 April 2011 to 17 April 2012.

 6.  Based on the foregoing, there is insufficient evidence on which to grant 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)                                         AR20120009681



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ABCMR Record of Proceedings (cont)                                         AR20120009681



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