IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20120011389 


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 orders be issued to reassign him to the Fort Eustis, VA, Warrior Transition Unit (WTU) during the period 23 January 2008 through 12 July 2008.

2.  The applicant states:

* He was a member of the Virginia Army National Guard (VAARNG) mobilized on active duty in support of Operation Iraqi Freedom
* He was medically evacuated from Iraq to Landstuhl Regional Medical Center (LRMC) in Germany on 23 December 2007 and he was assigned to Portsmouth Naval Medical Center, VA
* Except for the medical evacuation attaching him to the WTU at Fort Eustis for 30 days, he never received orders assigning him to the WTU
* It was explained at the time that since he was on mobilization orders for 400 days and since he was under stop loss, no orders were needed
* He was also informed he needed to reenlist for 3 years in order to continue his health care because his orders would have expired in July 2008
* He received his first set of orders assigning him to the WTU on 13 July 2008
* The period from 23 January 2008 through 12 July 2008 remains questionable 

3.  The applicant provides:

* Medical Retention Processing printout
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement)
* DD Form 13451-2 (Travel Voucher or Sub-voucher)
* Orders 130-423, dated 10 May 2007
* Orders 358-020, dated 24 December 2007
* Orders 016-012, dated 16 January 2008
* Orders A-08-814890, dated 5 August 2008
* Orders A-08-814890A01, dated 26 November 2008
* Orders A-08-814890R, dated 14 January 2009
* Orders A-01-901731, dated 14 January 2009
* Orders A-01-901731A02, dated 10 June 2009
* Orders A-01-901731A03, dated 15 September 2009'
* Orders 032-0003, dated 1 February 2010
* Multiple DA Forms 31 (Request and Authority for Leave)
* Copy of a blank check
* Mission Essential Statement, dated 13 December 2011
* WTU Leave Worksheet
* Recommendations for Convalescent Leave
* Multiple Leave and Earnings Statements

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army and the ARNG, the applicant enlisted in the VAARNG on 7 September 2006 for a period of 2 years and he held military occupational specialties (MOS) 11C (Indirect Infantry Fireman).  He was assigned to Troop B, 2nd Squadron, 183rd Cavalry.

2.  On 10 May 2007, Office of the Adjutant General, VAARNG, published Orders 130-423 ordering him to active duty as a member of his Reserve unit under the provisions of Title 10, U.S. Code, section 12302 (involuntary), for a period of 400 days in support of Operation Iraqi Freedom.  He was ordered to report to Camp Shelby, MS, on 11 June 2007.

3.  He served in Kuwait/Iraq (Camp Buehring) from September to December 2007.  He appears to have been involved in a vehicle accident during training in September 2007.  He also appears to have been medically evacuated from Kuwait/Iraq to LRMC, Germany on or about 23 December 2007. 

4.  On 24 December 2007, Headquarters, LRMC, Germany, published Orders 358-020, ordering him on a temporary change of station (TCS) at the Navy Medical Center, Portsmouth, VA, for a period of 30 days, effective 24 December 2007, for further medical care.  The orders stated he would proceed on a TCS to Portsmouth, VA and return to his permanent station upon completion of duties.  

5.  On 16 January 2008, Headquarters, LRMC, Germany, published Orders 016-012, amending his orders and ordering his assignment to A Company, WTU, Fort Eustis, VA.

6.  On 23 June 2008, he executed a 1-year reenlistment in the ARNG.  His DA Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows his home of record as "Solon, VA" and his unit of assignment as the WTU, Fort Eustis. 

7.  He submitted multiple DA Forms 31 which show he was on convalescent leave at his home in Solon, VA, during the periods:

* 19 April 2008 through 18 May 2008
* 27 June 2008 through 26 July 2008

8.  The applicant submitted a printout of his Medical Retention Processing which shows a chronological record of his activities within the WTU.  This printout shows he reported to and inprocessed the WTU on 26 December 2007and his MRP start date is 13 July 2008.  

9.  On 5 August 2008, the U.S. Army Human Resources Command, St. Louis (HRC-STL) published Orders A-08-814890, ordering him retained on active duty with the WTU-Fort Eustis for a period of 179 days, starting on 13 July 2008 and ending on 7 January 2009.

10.  On 26 November 2008, HRC-STL published Orders A-08-814890A01, amending the above orders to retain him on active duty with the WTU-Fort Eustis for a period of 358 days, in lieu of 179 days, starting on 13 July 2008 and ending on 5 July 2009 in lieu 7 January 2009.

11.  On 14 January 2009, HRC-STL published Orders A-08-814890R, rescinding the unexecuted portion of active duty order effective 30 September 2008.  

12.  On 14 January 2009, HRC-STL published Orders A-01-901731, ordering him retained on active duty with the WTU-Fort Eustis for a period of 278 days, starting on 1 October 2008 and ending on 5 July 2009.  The authority is shown as Title 10, USC, section 12301 (voluntary).

13.  On 14 May 2009, he executed a 3-year extension of his enlistment in the VAARNG.  
14.  On 10 June and 15 September 2009, HRC-STL, published Orders A-01-901731A1 and A2, amending the above orders to retain him on active duty with the WTU-Fort Eustis for a period of 457 days and then 636, in lieu of 278 days, starting on 1 October 2008 and ending on 31 December 2009 and then 28 June 2010 in lieu of 5 July 2009.

15.  On 22 December 2009, an informal physical evaluation board (PEB) convened in Washington, DC, and found the applicant's medical conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to various conditions.   The PEB rated him and granted him an 80% disability rating.  The PEB recommended that he be placed on the temporary disability retired list (TDRL) with reexamination in September 2010. 

16.  He was honorably retired on 27 March 2010 by reason of disability and placed on the TDRL under the provisions of chapter 4 of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years, 9 months, and 20 days of active service.  

17.  On 13 December 2011, by memorandum to the Defense Finance and Accounting Service, the applicant's WTU commander requested the applicant be authorized per diem during the period 24 December 2007 through 20 January 2010.  He was assigned to the WTU and authorized to reside only in single Soldier quarters on Fort Eustis, VA.  It was "Mission Essential" that the applicant resides on base due to medical conditions within the commuting distance of his home of record. 

18.  The applicant submitted copies of his Leave and Earnings Statement from January 2008 through July 2008.  These documents show he was receiving active duty pay while assigned to the WTU, Fort Eustis.

19.  The Warrior Transition Unit Consolidates Guidance (Administration) provides ongoing policy and guidance for the care and management of Warriors in Transition.  

20.  Paragraph 2-13b (WTU Reserve Component Soldiers Categories - Deployment) pertains to Soldiers who are evacuated from a theater of operation or a CONUS (Continental United States) mobilization assignment that incur an in the line of duty illness, injury, or disease or aggravate a pre-existing condition.  When the medical authority determines that a Soldier evacuated from a theater or CONUS assignment, and will RTD (Return to Duty) within 60 days from the time he or she is injured or becomes ill, and he or she will have at least 120 days left on his/her mobilization orders beyond the expected RTD date, the Soldier remains on active duty under Title 10, USC, section 12302.  Soldiers remain assigned to the WTU until Army medical authority determination returns the Soldier to duty.  If, at anytime, the medical authority determines the medical condition will not be resolved within 60 days of incident, the Soldier is offered MRP.  If, at anytime Army medical authority determines the Soldier will not RTD within 60 days of the time he or she is injured or becomes ill, he or she is offered MRP.  If the Soldier agrees to enter MRP, he or she is assigned to the installation WTU on Title 10, USC, section 12301(h) orders. 

21.  Chapter 3, paragraph 3-1 (TCS Orders) states the primary purpose of the TCS order is to serve as a personnel accountability tool able to track personnel at various locations based on the movement designator code (MDC).  The secondary purpose is to authorize various travel entitlements; it provides the ability to move a Soldier from station to station as required by military necessity. The format 401 order is a limited TCS order, which may be amended, revoked, or rescinded by the gaining command, as required to reflect movement within the (AOR).  eMILPO is used to maintain and account for Soldiers on TCS orders and allows the supporting unit to update the Soldier’s personnel file and facilitates accountability within the personnel system.  Movement to duty locations will be accomplished by the original TCS order and any amendments (format 700) when a validated requirement is established as prescribed in the Personnel Policy Guidance (PPG) found on the Army G-1 web site http://www.armyg1.army.mil . 

	a.  Paragraph 3-1c states Soldiers injured or sustaining an illness in theater are medically evacuated to Landstuhl on the authority of their deployment TCS orders.  Once/if Landstuhl order issuing authority determines further movement to a CONUS MTF (Military Treatment Facility) is required for additional treatment, Landstuhl will amend the deployment TCS order or issue a new TCS order (no longer than 30 days) sending the Soldier to the CONUS MTF.  Due to treatment requirements, if the destination Landstuhl places in the amendment TCS order changes and the Soldier is sent to another location in CONUS not matching their amendment order issued by Landstuhl, the owning WTU is authorized to amend the TCS order again to reflect the proper final destination.  Funding used for all TCS order amendments comes from the Soldier’s original deployment TCS order.  As such, requesting additional funds for the amendment TCS order is unnecessary. 

	b.  Paragraph 3-12 (Categories of Assignment/Attachment) states when Soldier is medically evacuated from CONUS/OCONUS to the MTF or is an inpatient at the MTF, civilian, VA or DOD medical facility, the MTF Commander attaches Soldier to MTF/WTU.  The MTF Commander notifies Soldier’s unit commander of Soldier’s status within 24 hours.  Soldier is medically evaluated to determine if Soldier meets the criteria per the WT definition.  If Soldier meets the WT definition criteria, Soldier is counseled regarding WTU assignment/ attachment options.  Determination is made for assignment/attachment to the WTU.  A nomination packet is completed as appropriate and forwarded to the Triad of Leadership.  Financial and benefit implications for assignment/ attachment can be found in the appropriate sections of this chapter.  The Triad of Leadership approves assignment/attachment orders for the Soldier.  If Soldier will be assigned, orders will be published by the MTF/WTU as soon as the decision is made.  However, the report date can be no earlier than 90 days from the MTF/WTU Commander decision date (the decision date equates to the date the orders are published). Early report should be authorized.  This will allow Soldier time to clear housing, move family and manage other personal matters. Assignment orders are funded by movement designator codes (MDC). Attachment orders are funded through MEDCOM and where appropriate charged as a contingency related cost. 

22.  Section II of chapter 5 provides for pay and allowances.  Sub-paragraph g states Per Diem while in attached status for WTU Soldiers.  The ASA M&RA has delegated authority to issue orders for per diem beyond 180 days for WTU Soldiers to Hospital/WTU Commanders in the rank/grade of no lower than COL/O6.  Per diem orders for this category of Soldier will be issued on format 410, attachment orders.  Hospital/WTU Commanders will issue attachment per diem orders for a maximum of 365 days.  Soldiers issued attachment orders must first check for Government lodging on the installation they are assigned to.  If lodging is not available on the installation or their duty location is not on an installation, the Soldier must use Army Lodging Success to obtain housing or a Statement of Non-availability (SNA).

	a.  When attached Soldiers are provided Government lodging and meals on the installation, the Soldier draws the incidental portion of per diem only ($3.00 a day CONUS/$3.50 a day OCONUS). 

	b.  When attached Soldiers are provided contract lodging (at no cost to the Soldier) off the installation, the Soldier draws full commercial rate meals and incidental per diem for the duty location. 

	c.  When attached Soldiers are provided Government lodging on an installation but commutes to duty a location away from that installation, the Soldier draws full commercial rate meals and incidental per diem for the duty location. 

	d.  When either Government or contract lodging is not available for an attachment period of less than 180 days, and the Soldier is issued a SNA for lodging to reside on the economy, the Soldier draws the full daily locality per diem rate for the duty location.  When the attachment period is for greater than 180 days, the Soldier draws 55% of the daily locality per diem rate for the duty location.  This rate covers lodging, meals, and incidental expenses.  To file for reimbursement at the 55% per diem rate, the Soldier is not required to provide any receipts.

23.  Title 10, USC, section 12302 states in time of national emergency declared by the President after 1 January 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months.  

24.  Title 10, USC, section 12301(h) states when authorized by the Secretary of Defense, the Secretary of a military department may, with the consent of the member, order a member of a reserve component to active duty to receive authorized medical care; to be medically evaluated for disability or other purposes; or to complete a required Department of Defense health care study, which may include an associated medical evaluation of the member.  A member ordered to active duty under this subsection may, with the member’s consent, be retained on active duty, if the Secretary concerned considers it appropriate, for medical treatment for a condition associated with the study or evaluation, if that treatment of the member is otherwise authorized by law.  A member of the Army National Guard of the United States or the Air National Guard of the United States may be ordered to active duty under this subsection only with the consent of the Governor or other appropriate authority of the State concerned. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty as a member of his ARNG unit on 11 June 2007 under Title 10, USC, section 12302, and subsequently served in Kuwait/Iraq from September to December 2007.  He appears to have been medically evacuated to Landstuhl Germany subsequent to a vehicle accident.   

2.  As required by the PPG, once officials at Landstuhl determined further movement to a CONUS MTF was required for additional treatment, he was issued a new TCS order (no longer than 30 days) sending him to the CONUS MTF.  He was ordered to report to the Navy Medical Center in Portsmouth, VA.  His orders were later amended to reflect the proper final destination.  Since funding used for all TCS order amendments comes from the Soldier’s original deployment TCS order, requesting additional funds for the amendment TCS order was unnecessary.  Upon arrival in CONUS, he inprocessed into the WTU at Fort Eustis, VA on 26 December 2007.  It appears that officials at the Fort Eustis WTU determined he needed additional medical treatment.  

3.  At this stage, the PPG states when the medical authority determines that a Soldier evacuated from a theater who will RTD within 60 days from the time he or she is injured or becomes ill, and he or she will have at least 120 days left on his/her mobilization orders beyond the expected RTD date, the Soldier remains on active duty under Title 10, USC, section 12302.  

4.  However, if, at anytime, the medical authority determines the medical condition will not be resolved within 60 days of incident, the Soldier is offered MRP.  If, at anytime Army medical authority determines the Soldier will not RTD within 60 days of the time he or she is injured or becomes ill, he or she is offered MRP.  If the Soldier agrees to enter MRP, he or she is assigned to the installation WTU on Title 10, USC, section 12301(h) orders. 

5.  In other words, once medical authorities determined the applicant's condition would not result in an RTD status within 60 days, there was a requirement by the WTU commander to coordinate placing him in the MRP program under Title 10, USC, section 12301(h).  It is unclear why he was not placed in MRP status until 13 July 2008. 

6.  It appears the initial understanding of his medical condition coupled with subsequent administrative errors prevented the applicant from being placed in the MRP, on orders, under USC, section 12301(h).  It also appears that the failure to issue those orders have denied him some benefits.  Therefore, he is entitled to the issuance of official orders placing him in the MRP from 23 January 2008 through 12 July 2008 and payment of any back pay and allowances as a result of issuance of this order. 

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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

   a.  Issuing the applicant official orders retaining him on active duty under the provisions of Section 12301(h), Title 10, U.S. Code from 23 January 2008 through 12 July 2008, to participate in the Reserve Component Warrior in Transition Medical Retention processing Program for completion of medical care and treatment with assignment to A Company, Warrior Transition Unit (W2K122), Fort Eustis, VA.

   b.  Paying him all back pay and allowances due as a result of the above correction. 
   



      __________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)                                         AR20120011389



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ABCMR Record of Proceedings (cont)                                         AR20120011389



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