IN THE CASE OF:	  

		BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130002568 


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 military records by revoking orders that assigned him to the Inactive National Guard (ING) and thereby permit adjustment of his creditable time in service (CTIS) for retirement and time in grade (TIG) to accurately reflect his service.

2.  The applicant states he was placed in the ING for a period of 16 months.  This affected his CTIS for retirement and his TIG as a specialist, pay grade E-4.  At the time of his application, he was an officer candidate about to attend the Basic Officer Leadership Course.  His date of rank (DOR) was adjusted from 24 April 2007 to 29 August 2008 (1 year, 4 months, and 6 days).  The applicant further contends that when a Soldier has a line of duty (LOD) injury that requires surgery, the unit should not place that individual in the ING, especially without any notification to that Soldier.  He contacted the 579th Engineer Battalion and requested them to amend the record and was told they were unable to do so.  His current unit, the 143rd Field Artillery, informed him that they also were unable to correct the record because they did not process the LOD and were not the action unit that placed him in the ING.

3.  The applicant provides copies of:

* DA Form 2823 (Sworn Statement) by the applicant, dated 23 July 2008
* Letter to the applicant from his physician, dated 30 October 2008
* Email from California Army National Guard (CAARNG) to the applicant, dated 13 November 2008, with Memorandum attached, dated 29 October 2008
* DA Form 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) dated 18 November 2008 for the period 
1 February to 30 April 2008
* DA Form 7574-1, dated 18 November 2008, for the period 1 May to 
31 July 2008
* DA Form 7574-1, dated 18 November 2008, for the period 1 August to 
31 October 2008
* Orders 83-1091, CAARNG, dated 24 March 2009
* Physician's Medical Operative Note, dated 8 April 2009
* Orders 39-1024, CAARNG, dated 8 February 2010
* Email between the applicant and the CAARNG, dated 27 November to 
7 December 2012
* National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), prepared on 29 January 2013

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 2 March 2007, the applicant entered the CAARNG in the rank of specialist, pay grade E-4.  He attended his initial entry training from 24 April to 
9 August 2007, and returned to his CAARNG unit on 10 August 2007.

3.  The applicant signed a DA Form 2823 on 23 July 2008, wherein he stated that while attending basic and advanced individual training at Fort Leonard Wood, MO, he injured his left knee.  He was taken to the hospital and put on a restricted profile for the 2 remaining weeks of training.  When he returned to his home in California, he made an appointment with his doctor because his knee was not getting any better.  After physical therapy and getting a magnetic resonance image (MRI) it was discovered that he had to have surgery to repair a meniscus tear.  He stated he had surgery on 30 May 2008 but would need another surgery after a 3 to 6 month period.

4.  In a memorandum dated 29 October 2008, the CAARNG S1 (Personnel Officer) provided the applicant an incapacitation pay (INCAP) brief, wherein he was advised of his rights and responsibilities in conjunction with his incapacitation.  Reserve Component Soldiers who incur or aggravate an injury in the line of duty are entitled to medical treatment in a government facility or at Government expense.

5.  On 30 October 2008, the applicant's physician informed him that his left anterior cruciate ligament (ACL) tear would benefit from reconstruction.

6.  Three DA Forms 7574-1 were completed and signed on 18 November 2008.  These forms indicate that the applicant was incapacitated and not fit for duty continuously from 1 February to 31 October 2008.

7.  Orders 83-1091, CAARNG, dated 24 March 2009, transferred the applicant to the ING effective 1 October 2008.  This order also indicated the applicant's DOR for specialist was 24 April 2007.

8.  On 8 April 2009, the applicant's physician described the applicant's condition in an operative medical note, speaking to both the preoperative and postoperative diagnosis.  The applicant tolerated the procedure well and there were no intra-operative complications.  Routine ACL protocol was planned.

9.  Orders 39-1024, CAARNG, dated 8 February 2010, transferred the applicant from the ING back to active service, effective 6 February 2010.  This order also indicated that the applicant's DOR for specialist was adjusted to 29 August 2008.

10.  A DA Form 4187 (Personnel Action) dated 11 June 2012, attached the applicant to the 2nd Cadet Company, effective 12 June 2012.

11.  Orders 210-1032, CAARNG, dated 29 July 2013, announced the appointment of the applicant as a second lieutenant, Military Intelligence, effective 26 July 2013.

12.  An NGB Form 23B, prepared 29 January 2013, reported that the applicant was placed in the ING from 1 October 2008 to 7 March 2010.  Immediately prior to and after this period, he is reported as an Army National Guard member.

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, wherein the following comments and recommendations were made concerning the applicant's assignment to the ING.

	a.  The applicant incurred an injury while attending initial entry training (IET).  That injury subsequently required knee surgery.  The CAARNG counseled him about INCAP and his responsibilities while in such status.  However, the applicant was placed into the ING during his surgery and recovery period.  There are no documents available to show why this action was taken rather than paying him INCAP.

	b.  In accordance with Department of the Army Pamphlet 135-381, section 2-2(d), the applicant signed the briefing and counseling statements provided to him by the S1.  There were no documents provided regarding any counseling for being transferred to the ING.  CAARNG Order Number 83-1091 dated 24 March 2009 transferred the applicant to the ING effective 1 October 2008.  CAARNG Order Number 39-1024 dated 8 February 2010 transferred the applicant back to an active status effective 6 February 2010.  This order also adjusted his DOR for specialist to account for the time spent in the ING.

	c.  A CAARNG email, dated 25 June 2013, states there is no evidence to support why the applicant was placed in the ING.  The email further informed the applicant of the National Guard Regulation 614-1, section 2-17 that outlines the policy concerning the ING and suggested if he had questions concerning his transfer to the ING he should contact his commander.  The email further stated that if he thought the transfer to the ING was inappropriate, he may request that the orders transferring him to the ING be revoked.

	d.  Army Regulation 614-1, section 2-20, states that Soldiers transferred from active service to the ING lose their Servicemember's Group Life Insurance (SGLI) coverage 120 days after being separated from active service.  If the Board recommends approval to revoke the orders transferring the applicant to the ING, he will incur a debt related to SGLI.

	e.  The advisory opinion also includes discussion concerning the need for a medical evaluation board (MEB) and a physical evaluation board (PEB) to review the applicant's records and determine his suitability for a medical discharge.  However, his recent return to an active status in June 2012 and subsequent appointment as a second lieutenant with assignment to the 49th Military Police Brigade, make these concerns moot.

	f.  The advisory opinion makes the following recommendation, with which the CAARNG concurs:

* Revoke CAARNG Orders 83-1091, dated 1 October 2008
* Adjust the applicant's DOR/TIG back to 24 April 2007
* Show the applicant is entitled to INCAP for the period of his unfitness
* Adjust the applicant's Retirement Points History Statement to reflect these corrections
* Recoupment of debt incurred as a result of these corrections be made over a specified period of time to provide for minimal financial hardship on the applicant

14.  On 5 August 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by revoking orders that assigned him to the ING.  He further contends that his original DOR/TIG as a specialist should be restored and thereby show his correct CTIS for retirement.

2.  The available evidence clearly shows that the applicant incurred an injury during his IET that subsequently required knee surgery.  The CAARNG counseled him about INCAP and his responsibilities while in such status.  However, the applicant was not paid INCAP but rather was placed into the ING during his surgery and recovery period.  There are no documents available to show why this action was taken rather than paying him INCAP.  Furthermore, there is no evidence showing he was ever counseled regarding the consequences of being placed in the ING.  The applicant's TIG was reduced on a day-for-day basis while he was in the ING.  His not receiving INCAP for the period of his recovery from an injury that occurred while in IET and losing TIG while in the ING was unjust and inappropriate considering his circumstances.

3.  In view of the above the applicant's request should be granted, as it is supported by both the NGB and the CAARNG.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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

	a.  revoking CAARNG Orders 83-1091, dated 1 October 2008, that transferred him to the ING;

	b.  adjusting the applicant's date of rank for specialist, pay grade E-4 back to 
24 April 2007;

	c.  showing the applicant was entitled to incapacitation pay for the period of his unfitness from 1 February 2008 to 31 October 2008 to be paid out of ARNG funds;

	d.  adjusting the applicant's Retirement Points History Statement by removing all reference to his being placed in the Inactive National Guard from 1 October 2008 to 7 March 2010 and showing he remained an ARNG unit member earning membership points during that period; and

	e.  recouping any debt related to the Service member’s Group Life Insurance, incurred as a result of these corrections, over a period of 12 months to provide for minimal financial hardship on the applicant.




      _______ _   _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)                                         AR20130002568



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ABCMR Record of Proceedings (cont)                                         AR20130002568



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