IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20120022435 


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, in effect, that his records be changed to show his active duty orders were extended to 25 February 2013.  

	a.  He further requests that as a result of the requested correction he receive base pay, basic allowance for housing (BAH), and other benefits or entitlements that may be due for the period 30 October 2012 through 10 December 2012; and

	b.  BAH for the period 11 December 2012 through 25 February 2013.

2.  The applicant states he was medically retired on 29 October 2012 after 7 years of mobilized service in Alexandria, VA and Washington, DC.  Through a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) he was deemed to be medically unfit for further military service and placed on the Permanent Disability Retired List (PDRL).  Due to operational considerations, the General Counsel of the Army requested his mobilization orders be extended to allow him to conclude matters the General Counsel had assigned to him and properly transfer his responsibilities to his replacement.  The requests were "approved" by competent authority on two occasions purportedly extending his mobilization orders until 25 February 2013.  The Department of the Army (DA) failed to extend his mobilization orders as "approved," and as a result he will not receive pay and benefits for those months.

3.  He further states the 25 February 2013 date was derived as:  13 calendar days to clear the Pentagon, Fort Myer, and Fort Belvoir (his mobilization site)
(2 to 13 November 2012 – including weekends and the 4-day Veterans Day training holiday), 20 days of permissive temporary duty (PTDY) (to 1 December 2012, and 86 days of leave (to 25 February 2013).

4.  He further states that during the period of his mobilization, his former civilian employer terminated operations; therefore, he had no civilian employment to return to.  After winding down his responsibilities with the General Counsel, he had intended to use terminal leave and PTDY to seek employment and return his family to Pennsylvania.

5.  The applicant provides:

* his self-authored statement
* active duty orders
* physical disability evaluation related documents
* request for extension of established retirement date
* DA Forms 31
* email message exchanges regarding his disability retirement date and the request for extension of his retirement date
* Officer Evaluation Reports (OERs)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 214 Worksheet

CONSIDERATION OF EVIDENCE:

1.  On 1 November 2005, the applicant entered active duty as a captain in the Judge Advocate General’s (JAG) Corps of the USAR in support of Operation Enduring Freedom (Other than Homeland) and he was assigned to the 154th JA Detachment.  He continued to receive various orders for service on active duty.  The latest such orders contained in his records are Orders A-10-124420, issued by the U.S. Army Human Resources Command (AHRC) on 27 October 2011 ordering him to active duty at the Office of the General Counsel (OGC) for the purpose of contingency operations for active duty operational support (CO-ADOS) in support of Operation Enduring Freedom with an ending date of 29 October 2012.

2.  On 27 January 2012, an MEB referred him to a PEB for diabetes mellitus and hallux limitus (both feet). 
 
3.  On 2 August 2012, an informal PEB found him unfit for duty for diabetes mellitus II and hallux limitus (both feet).  The PEB recommended a disability rating of 30 percent with a permanent disability retirement.

4.  On 15 August 2012, the applicant acknowledged he had been advised of the findings and recommendations of the PEB and received a full explanation of the results and his legal rights.  He concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

5.  On 13 September 2012, the executive officer at OGC requested that the U.S. Army Physical Disability Agency (USAPDA) grant the applicant an extension of his established retirement date of 19 November 2012.  The memorandum stated that due to the unexpected speed with which the applicant's disability retirement was approved, he must transfer his duties to others and finalize projects he had been assigned.  Further, due to the importance of his participation and in order for him to take 10 days to out-process, 20 days of PTDY, and 86 days of terminal leave, a retirement date of 25 February 2013 was required.

6.  He provides approved DA Forms 31 (Request and Authority for Leave) for PTDY for the period 12 November through 1 December 2012 and 86 days of transition leave for the period 2 December 2012 through 25 February 2013.

7.  He submits emails related to his effort to have his retirement date extended.   An email from the USAPDA, dated 12 September 2012, states that PTDY was not an entitlement and the Army had directed that PTDY for Soldiers in the disability process was limited to Regular Army Soldiers.  As such, the applicant could not be extended for the period of time that would be used to take PTDY.  The author of the email further stated the remaining portion of the request for an extension of his retirement date was approved, along with the time to take his transition leave.  That would result in an [extended] retirement date of not later than 5 February 2013 depending on the amount of transition leave he chose to take or cash in.

8.  He provides:

* a DD Form 214 Worksheet showing separation from active duty on 5 February 2013 and Orders 258-0003, issued by U.S. Army Garrison, Fort Belvoir, VA, dated 14 September 2012, showing a date of retirement of 5 February 2013 and placement on the retired list on 6 February 2013
* Orders 284-0005, issued by U.S. Army Garrison, Fort Belvoir, VA, dated 10 October 2012, showing his date of retirement as 25 February 2013 and placement on the retired list on 26 February 2013.
* Orders 333-0002, issued by U.S. Army Garrison, Fort Belvoir, VA, dated 28 November 2012, showing his date of retirement as 29 October 2012 and placement on the retired list on 30 October 2012

9.  A DD Form 214 shows he was retired on 29 October 2012 due to permanent disability.

10.  In his personal statement he also states:

	a.  He is requesting payment of BAH for the 76 days he sold back to the Army in mitigation.

	b.  He would have accrued 10 additional days of regular leave over this period.

	c.  Due to confusion generated by his status and the apparent approvals to extend his orders to 25 February 2013, he continued to serve in a de facto active status from 30 October until 2 November 2012, the date of his award and retirement ceremony.

	d.  Due to the length of his mobilization, if his employer were still operating, he would not be a covered employee under the Uniformed Services Employment and Reemployment Act due to his mobilization exceeding 5 years.

	e.  On 15 August 2012, Ms. W, his Physical Evaluation Board Liaison Officer (PEBLO) at Bethesda National Military Medical Center, requested through the Commander, Military District of Washington, an extension of his mobilization orders until 31 December 2012.  Those orders were never approved. 

	f.  On 21 August 2012, he was informed by the Fort Belvoir Retirement Services Officer (RSO) that the USAPDA approved his PDRL retirement with a 30 percent disability rating, further directing that he be placed on the PDRL no later than 19 November 2012.

	g.  Due to the extremely short time in which his retirement was approved by the USAPDA, the importance of the issues assigned to him to complete, the scheduled arrival of his replacement (who arrived on 8 October 2012), and knowing that policy permitted the extension of his mobilization orders for operational reasons, OGC requested he remain on active duty until 2 November 2012 to assure a smooth transition.

	h.  On two occasions the OGC requested extension of his mobilization orders from 29 October 2012 until 25 February 2013.  The USAPDA approved his 13 September 2012 request to extend his retirement until 25 February 2013.  With no extension orders, he left his office on 2 November 2012.

11.  He continues by stating when notice of the USAPDA approval came within days of his acceptance of the USAPDA findings, with 76 days of leave, the possibility of 20 days of PTDY, and figuring a minimum of 13 calendar days to clear the Pentagon and Fort Belvoir (weekends and the 4-day Veterans Day training holiday), it would have been irresponsible of him to immediately begin terminal leave (i.e., 22 August 2012) to meet the 90-day deadline (19 November 2012) established by the USAPDA.  It is for these operational reasons when considered in conjunction with his personal status that the OGC requested the extension of his orders until 25 February 2013.

	a.  Through email and in telephone conversations on 21 August 2012, he was told that all accrued leave and any approved PTDY must be used not later than the USAPDA approved retirement date unless an operational waiver was approved by the USAPDA.

	b.  On 22 August 2012, the OGC requested through the Fort Belvoir RSO to the USAPDA an extension of his mobilization orders from 29 October 2012 until 25 February 2013 for the purpose of concluding his duties with the OGC, to take 20 days of PTDY, 86 days of accrued leave and additional days to demobilize from OGC not later than 2 November 2012.

	c.  On 4 September 2012, he contacted the Fort Belvoir RSO to ascertain the status of his request to extend his mobilization orders and was told his retirement date was approved for 5 February 2013, versus 25 February 2013.

	d.  On 6 September 2012, he spoke with Ms. B and she told him he was approved to retire on 5 February 2013 because he was not permitted to take PTDY due to the fact that he was a mobilized Reservist, and not Regular Army.  Based on his chain of command's interpretation of Army Regulation 600-8-10 (Leaves and Passes), they believed, as he does, that he was permitted to take PTDY.  He appealed the contraction of his retirement date in an email to Ms. B on 6 September 2012.

	e.  On 12 September 2012, Mr. DT, Chief, Retirements and Separations, responded to his appeal.  In a follow-on conversation with Mr. DT, he tried to further his argument, but relented.  Mr. DT stated that if his chain of command were to resubmit a request to extend his retirement date until 25 February 2013 for operational reasons, he would consider the request.

	f.  On 13 September 2012, the OGC again requested through the Fort Belvoir RSO to the USAPDA an extension of his retirement date until 25 February 2013.  He also inquired as to the procedures to extend his mobilization orders.  He was told that AHRC would extend his orders based on the USAPDA's approval of his extension request.  On 14 September 2012, he inquired again as to the extension of his Title 10 U.S. Code (10 USC), 12301(d) order from 29 October 2012 until (at that time) 5 February 2013.  He received no written reply.

	g.  On or about 10 October 2012, the USAPDA approved his request to extend his mobilization until 25 February 2013, and new retirement orders were issued.  He again inquired in a conversation with the Fort Belvoir RSO as to when his mobilization orders would be extended to 25 February 2013, and was told that the USAPDA or AHRC would issue the orders.

	h.  On several occasions between 10 and 18 October 2012, he inquired as to the status of the extension of his mobilization orders, and was repeatedly told that the USAPDA or AHRC had to issue the orders, but no one was able to provide an answer as to when the orders would be issued or other competent authority to request the extension.

	i.  On 26 October 2012, he was told by the Deputy Chief of Staff (DCS), 
G-3/5/7 that he should have requested an extension of his orders through other authorities.  He also understood that his request was with the DCS, G-1 for approval.  However, he was instructed to report to the Fort Belvoir RSO on 29 October 2012 (the last day of his mobilization orders) to complete the issuance of his order extension.  Due to "Super Storm Sandy," the Fort Belvoir RSO office was closed 29 to 31 October 2012.

	j.  On 1 November 2012, he reported to the Fort Belvoir RSO (Mobilizations) but they were unable to assist stating that AHRC had not received any request or direction to extend his orders.

12.  He continues on, stating that DA in accordance with Military Personnel (MILPER) Message 09-067 arbitrarily and capriciously refused to extend his mobilization orders until 25 February 2013 despite approval from competent military authority.  

	a.  MILPER Message 09-067, dated 25 March 2009), contains DA's established policy for disability evaluation system separation processing for Regular Army and Mobilized Soldiers (e.g., MEB/PEB separation/ retirement).  MILPER Message 09-067 states that if a mobilized Soldier is to be retired and placed on the retired list, i.e. the PDRL, the USAPDA shall establish and transmit through transition processing (TRANSPROC) a notification report with the data necessary to complete the orders process and establish a "not later than 90 days" separation date, e.g., 19 November 2012.  Requests for the extension of the "not later than 90 day" date for situations other than use of accumulated leave may be considered based on extenuating circumstances and "USAPDA is the approval authority for these requests."  Approval authority for transition leave that results in exceeding the "90 day no later than date" is the first Colonel/O-6 in the Soldier's chain of command.  No other reference, policy or procedure was provided for the purpose of extending mobilization orders for activated Reservists despite his numerous inquiries.

	b.  On 24 August 2012, he was verbally informed by Ms. B that his mobilization extension request had been approved.  The TRANSPOC notice was provided to the Fort Belvoir RSO, who in turn issued retirement orders and a draft DD Form 214 for retirement on 5 February 2013.  The 25 February 2013 retirement date was denied in part to, OGC believed, an incorrect interpretation of Army Regulation 600-8-10, dated 15 February 2006 (Rapid Action Revision issued on 4 August 2011) regarding PTDY.  After conversations with Mr. DT, USAPDA Chief, Retirements and Separations, Mr. DT agreed that if OGC were to resubmit their request to retain him on active duty until 25 February 2013 for operational reasons, he would consider the request.  OGC again requested an extension of his orders until 25 February 2013, due in part to his participation in matters and projects assigned by the General Counsel and the now anticipated delayed arrival of his replacement.  On 10 October 2012, an extension of his retirement date for operational reasons to 25 February 2013 was approved and retirement orders issued for that date.

	c.  MILPER Message 09-067 is clear.  The USAPDA has the authority to extend retirement dates and the Army is obliged to extend mobilization orders based on the USAPDA extension approvals.  It provides no reference, policy, procedure or mention of any other official authorized to act and/or approve extensions of mobilization orders.  In fact, it specifically states the USAPDA is the sole authority.  As the Army's personnel managers, the USAPDA's higher headquarter commands, the AHRC and/or the DCS, G-1, have the authority to, at a minimum, direct that a competent orders-issuing authority extend his mobilization orders, or at most issue the orders under their own or under delegated authorities.

	d.  MILPER Message 09-067 was scheduled to expire on 31 December 2010; however, the message explicitly states that the procedures will remain in effect until superseded or rescinded.  As of 21 August 2012, when he was provided information to request the extension of his mobilization orders, MILPER Message 09-067 was provided by the Fort Belvoir RSO as current guidance, and but for the arbitrary and capricious failure to extend his mobilization orders, the Fort Belvoir RSO and the USAPDA have complied with other procedures and policies of MILPER Message 09-067 lending credence to its validity as current guidance.

	e.  DA and its officials, to include his PEBLO, the MEB, the PEB, the USAPDA, the Fort Belvoir RSO, and the DCS, G-1, all had full knowledge of his mobilized status.  Each of these offices knew or should have known that his legal status expired on 29 October 2012, and that by approving his placement on the PDRL, on 26 February 2013, he would require or request an extension (or bridging) of his mobilization orders.  For reasons that are unclear, no Army official, even after his repeated inquiries to each of these offices, provided any other policy, procedure, or suggestion to apply to another military authority to request the extension of his orders.  After his mobilization ended, OGC inquired into the status of the issuance of extension orders, but was unable to identify a cogent reason for the failure by the Army to issue an extension of his orders.

	f.  Even if the Army were to argue that he improperly relied on the statements or promises of officials not authorized to make such promises, the fact that OGC complied with the published policy and the officials charged with executing that policy acted in accordance with that policy is sufficient evidence to show he had every expectation and could reasonably rely on the fact that the Army would extend his orders.  He had every reason to believe, and did in fact believe, the Army would extend his orders, and after the fact realized he detrimentally relied, placing his family at risk, on the promises made by Army personnel.

	g.  Further, an Army position that Soldiers on orders to undergo medical treatment should take leave to ensure it does not accrue is not a realistic position in his circumstances.  He was not on active duty for the sole purpose of undergoing medical treatment.  The MEB/PEB process was ancillary.  He believes MILPER Message 09-067 was published to clarify a particular problem providing clear guidance to the warrior transition units where the Soldiers on active duty pursuant to 10 USC 12301(b) have a primary mission, as it should be, to seek medical treatment to recover from the wounds, injuries and illnesses incurred in combat.  He was mobilized to the OGC to assist the General Counsel and his attorneys in providing legal advice to the Army Secretariat whose responsibilities and oversight have exponentially grown since 11 September 2001.  It would have been irresponsible and unprofessional for him to say on 
22 August 2012, while already in a leave status, "sorry, I gotta go.  I have leave and stuff to use," and drop his work on the desks of already over­worked attorneys with far greater responsibilities.  The authority for the first Colonel in a Soldier's chain of command to approve extensions beyond the USAPDA's 90-day no-later-than date, and the USAPDA's concurrence, approval and extension of that date was designed for circumstances such as his.  The potential argument by certain Army officials that all leave and PTDY must be used within 90 days of an arbitrarily-established date is unrealistic. 

13.  In summary and conclusion, DA has, in an arbitrary and capricious manner, failed to extend his mobilization orders to 25 February 2013, despite the fact that he and his chain of command complied with the instructions provided in MILPER Message 09-067.

14.  MILPER Message 09-067, issued 25 March 2009, states the message provides guidance on policy and procedures to installation transition centers to accomplish separation processing of Soldiers separating due to disability.  It states requests for extension of the 90-day not later than date for situations other than use of accrued leave may be considered in extenuating circumstances.  The USAPDA is the approval authority for those requests.  The Soldier's request must be endorsed by the first Colonel/O6 in the Soldier's chain of command and set forth the extenuating circumstances.  It further states that in accordance with Army Regulation 600-8-10, Regular Army Soldiers separating or retiring due to disability may be authorized PTDY.  In accordance with Army G-1 Warrior Transition Unit guidance Reserve Component Soldiers are not authorized PTDY under this program.  PTDY is an authorization not an entitlement and must be approved by the Soldier's chain of command.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted.  He was found unfit by a PEB.  On 15 August 2012, he concurred with the findings and recommendations of the PEB.

2.  On two occasions the OGC requested an extension of his previously established not later than 90-day retirement date of 19 November 2012.  The reasons given for the requests were:  the unexpected speed with which his disability retirement was approved, the need to transfer his duties to others, finalize projects he had been assigned, and to provide for out-processing, PTDY, and terminal leave.

3.  Though MILPER Message 09-067 explicitly states PTDY for Soldiers being retired for disability is only for Regular Army Soldiers this is not the primary consideration in this case.  His CO-ADOS orders ended effective 29 October 2012.  There is no evidence a request for an extension of his CO-ADOS orders was ever submitted to AHRC or that AHRC issued any orders extending him in a CO-ADOS or other active duty status beyond 29 October 2012.  There is no evidence of a need for him to remain on active duty for medical reasons or for sufficiently compelling operational reasons.  It appears that OGC never had any reasonable expectation of the applicant serving beyond 29 October 2012.  As such, there is an insufficient basis for extending him on active duty beyond 
29 October 2012.  Though evidence shows USAPDA would have granted him an extension to his established retirement date, absent active duty orders beyond 29 October 2012, Fort Belvoir issued orders placing him on the retired list effective 30 October 2012.

4.  His "expectation" that his active duty orders would be extended and continuing on duty in a "de facto" status for a few days beyond the ending date of his orders are not errors on the part of the military.

5.  In regard to considerations of equity or injustice, an extension of active duty orders is not an entitlement granted simply because it was requested in accordance with published Army policy rather such extensions should be fully justified based on medical or operational reasons.  Furthermore, granting him the relief he requests would be granting him benefits not offered to other Soldiers being retired for disability.  As such, there does not appear to be a sufficient evidentiary basis to support such a conclusion in this case.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's request. 

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 that 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.

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