BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130008357 


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 compensation or recognition for service from his Mandatory Removal Date (MRD) of 31 August 2012 to his release from active duty (REFRAD) and clearing from Fort Knox, Kentucky on 8 November 2012.

2.  The applicant states:

	a.  To his knowledge he is still on patient status at the Warrior Transition Unit (WTU), Fort Knox, Kentucky.

	b.  He has seen no documentation from any medical service provided or by any decision authority in the WTU that he has been released, or that his condition warranted termination of treatment.

	c.  No medical evaluation as directed by Order A-08-215486 ever occurred.

	d.  WTU personnel directed him to treatment on 17 September 2012 and his retirement orders are backdated to 31 August 2012.

	e.  He was on a contingency operation for active duty operational support (CO-ADOS) from September 2011 to January 2012, then he mobilized for Fort Knox immediately thereafter under CO-ADOS orders.

	f.  He was diagnosed with skin cancer and his condition should have been diagnosed much earlier; however, due to incompetence and extremely inefficient bureaucratic policies and procedures it was not.

	g.  On 27 August 2012, he was attempting to out-process because he had reached his MRD when he was directed by a senior civilian to cease out processing because orders had been issued transferring him to the WTU.

	h.  He was ordered to the WTU because of his medical condition.

	i.  Usually, a 60-day order is issued (which was done in his case, but revoked the same day) to allow the Soldier to be evaluated to determine necessary treatment and duty status.

	j.  His medical evaluation to this day has not been completed.

	k.  He was directed by the Warrior Transition Battalion (WTB) Commander to continue his duties pursuant to WTB practices and to meet all WTB requirements, which he did as well as finishing a previously-scheduled treatment on 17 September 2012.

	l.  During this period he was without an extension of orders even though he was told repeatedly by the WTB staff that they were working the issue.

	m.  He could not receive post-active duty medical benefits or treatment from the Department of Veterans Affairs until he out-processed and received REFRAD and retirement orders.

	n.  He could not complete out-processing because every time he attempted to do so he was denied because he was still a patient within the WTB and Fort Knox had no jurisdiction to complete his out-processing.

	o.  Medical treatments were not available to him contrary to what has been asserted by numerous commands.

	p.  On 15 October 2012, the U.S. Army Human Resources Command (HRC) Operations Officer strongly suggested that he not elect further medical treatments in case they would not be approved by the Army's medical support system.

	q.  All Soldiers deserve an opportunity to determine if they are qualified for extensions to active duty due to medical issues.

	r.  His WTB qualifying packet was submitted and approved and he was directed to the WTB at Fort Knox which necessarily extended his service; however, no orders reflected it beyond the change to his CO-ADOS orders from 27 August to 31 August 2012 (time which was spent in processing in to the WTB).

	s.  On numerous occasions he asked for clarity of his request for an extension to his MRD or REFRAD and neither was forthcoming until he pressed the issue through multiple commanders ending with his communication with HRC.

	t.  He was not allowed to out-process until 8 November 2012, yet he only has orders through 31 August 2012.

	u.  He initiated 10 separate attempts to out-process and ten times he was not allowed to out-process.

	v.  He continued his duties as directed by the WTB Commander but he was not paid and was denied medical coverage for a life-threatening condition for 
69 days, except for one treatment on 17 September 2012.

	w.  Not only was he denied medical treatment and pay, but he bore the cost of his stay at Fort Knox for 69 days until he was officially discharged on orders backdated to 31 August 2012 for the convenience of the Army's administrators.

	x.  All post-active duty benefits were denied to him for 69 days of coverage because he could not take advantage of them until he was discharged.

	y.  Backdating his orders consumed 69 days of coverage.

	z.  He could not go home, he could not receive medical treatment, and he was not paid as the authorities charged with his welfare failed him by passing the buck from one command to the next.

		(1)  He could not seek alternative employment during this time which limited his income and he spent countless hours documenting, making phone calls, sending emails, and writing letters regarding these actions.

		(2)  If he has not been released from patient status, he seeks recognition that he is still in active service in the form of orders to that effect with all attendant benefits.

3.  The applicant provides:

* sequence of events (undated)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 August 2012
* DD Form 214 Worksheet, dated 16 October 2012
* In-Processing/Out-Processing, dated 2 November 2012
* email transmissions between him and Army officials
* Holiday Inn Express Receipt, dated 2 November 2012
* numerous Active Duty, Reassignment, Amendment, and Revocation Orders
* HRC Memorandum for Commander, U.S. Army Armor Center, Transition Center, dated 2 November 2012
* Headquarters, 84th Training Command letter to the Commander, WTB, dated 17 August 2012
* medical doctor's letter to the Commander, WTB, dated 13 August 2012
* Patient and Physician Information Report, dated 9 July 2012
* Association in Dermatology, PLL, Frozen Section Pathology Report, dated 16 April 2012
* Patient and Physician Information Report, dated 27 February 2012
* Patient and Physician Information Report, dated 19 March 2012
* Ireland Army Community Hospital Dermatology Report, dated 17 January 2012
* list of costs incurred as a result of actions taken by him between 16 November 2012 and 25 April 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 25 August 1980.  He accepted an appointment as a second lieutenant on 14 August 1982 and entered active duty.  On 15 May 1986, he tendered his unqualified resignation from the Army to become effective 14 August 1986.

2.  On 15 September 1986, the applicant accepted an appointment in the USAR for an indefinite term, in the rank of captain.  He was promoted through the ranks to colonel.

3.  On 14 December 2011, Orders A-12-127749 were published ordering the applicant to ADOS with attachment to the 84th Training Command, Fort Knox, Kentucky.  The orders show a reporting date of 7 January 2012 and an ending date of 31 August 2012.

4.  On 27 August 2012, Orders A-08-215482 were published retaining him on active duty with assignment to the WTB, Fort Knox, Kentucky for 60 days.  The orders show his active duty ending date as 25 October 2012.

5.  On 27 August 2012, Orders A-08-215482R were published revoking                Orders A-08-215482.
6.  On 27 August 2012, Orders A-08-215486 were published retaining the applicant on active duty with assignment to WTB, Fort Knox, Kentucky.  The orders show his active duty ending date as 31 August 2012.

7.  On 28 August 2012, Orders A-12-127749A01 were published amending Orders A-12-127749 to change his active duty ending date to 26 August 2012.

8.  The applicant provides a DD Form 214 Worksheet showing his separation date this period as 16 October 2012.  He also provides a copy of his actual 
DD Form 214, which shows his separation date this period as 31 August 2012.  It shows that his DD Form 214 was prepared on 8 November 2012.  He provides a number of email transmissions between Army officials and himself regarding his status.  He also submits letters dated prior to his MRD requesting an extension of his MRD to allow him additional medical care.

9.  On 6 September 2012, Headquarters, U.S. Army Medical Command (MEDCOM), Clinical Services Division notified HRC that in accordance with Army Regulation 40-501, WTU Consolidation Guidance, and U.S. Code, Title 10, Section 14519 (Deferment of Retirement or Separation for Medical Reasons) the applicant was not authorized extension of his MRD.  The notification states that the applicant was not processing through the Disability Evaluation System and that his medical condition was amenable to safe transfer to other sources of care.

10.  In an email dated 11 September 2012, the applicant requested acceptance to the WTB.  He acknowledged receipt of the 6 September 2012 recommendation to non-concur with his extension of duty beyond his MRD.  He strongly requested consideration to permit him to finish his immediate medical treatments with his current medical professional.  He argued that to toss him to the Department of Veterans Affairs (VA) would compel him to start over.  He would have to go to the VA and begin again versus completing in a few short months the following:

* minimize the effects of surgical removal of his upper left ear (reconstruction)
* conduct pre-cancerous cell destruction via topical treatments
* continue post-surgery laser treatments to minimize scarring
* removal of other questionable areas
* confirmation of successful removal of affected areas to gain confidence all treatments met their intended purpose

11.  In an email to the applicant, dated 15 October 2012, an HRC colonel informed the applicant that based on all data they collected he should have left active duty on 31 August 2012.  He was told he had not been on a valid set of orders since 31 August 2012 and had been told by numerous organizations on the installation that he needed to out-process.  He was told he could not remain on active duty and as such, he should finish his out-processing immediately.  He was told that he applied for and was not granted an exception to policy to stay past his MRD.  He was told that adequate medical treatment to resolve his medical concerns was available to him after he separated.  He was also informed that the approval authority to remain on active duty beyond his MRD resided with the Secretary of the Army.  The applicant was told that in cases where competent medical authorities recommended a Soldier not remain on active duty and is separated it is extremely unusual for an exception to policy to be granted.  He was told that any medical expenses he incurred would not be paid by TRICARE and would likely be at his own expense.

12.  Headquarters, 81st Regional Support Command, Orders 12-291-00077 were published on 17 October 2012 releasing the applicant from assignment and assigning him to the Retired Reserve.

13.  On 2 November 2012, Orders A-08-215486A01 were published amending Orders A-08-215486 to change his active duty ending date to 16 October 2012.

14.  On 5 November 2012, Orders A-08-215486A02 were published amending Orders A-08-215486 to change the applicant's active duty ending date to 1 September 2012.

15.  On 5 November 2012, Orders A-08-215486A03 were published further amending orders A-08-215486 to change his active duty ending date to 31 August 2012 (prior to his mandatory release date (MRD)).

16.  Orders 12-312-00029 were published on 7 November 2012 amending Orders 12-291-00077 to show his effective date for transfer to the Retired Reserve as 1 September 2012.

17. On 8 November 2012, Orders 313-0167 were published reattaching the applicant to the Training Command, Fort Knox, Kentucky, effective 8 November 2012 and releasing him from active duty effective 31 August 2012.

18.  Orders 12-314-00046 were published on 9 November 2012 revoking Orders 12-312-00029, dated 7 November 2012.

19.  On 15 July 2013, an advisory opinion was obtained from the HRC Deputy     G-3 recommending that no action be taken on the applicant's request.  The HRC Deputy G-3 stated that the basis for the recommendation is that the applicant attained his MRD and did not provide sufficient justification that is in accordance with Army mobilization policy to be extended.  He stated there is no legal statute or policy which would allow the Army to have continued the applicant on active duty past his MRD because he had not been referred to the disability evaluation system.  He stated the applicant did submit a request for retention beyond his MRD for the purpose of continued medical care; however, his request was denied by Headquarters Department of the Army (HQDA), G-1 as he was eligible for follow-on medical care through the VA for any line of duty related medical issues upon his REFRAD.  He states that the applicant retired from the USAR and submitted all requests through USARC as a Troop Program Unit (TPU) Soldier on CO-ADOS orders at the time of his alleged injuries.  The HRC Deputy G-3 states that HRC only became involved after the applicant surpassed his MRD and was transferred to the Retired Reserve.

20.  In a letter, dated 24 July 2013, the applicant submitted a rebuttal to the advisory opinion stating the HRC Deputy G-3 completely missed the point of his petition.  He stated:

	a.  He could not out-process due to his patient status, despite having reached his MRD.

	b.  He tried five times and was stuck at Fort Knox without authority to leave, without authority to stay, without medical treatment, without benefits, and without pay.

	c.  No Soldier decides to out-process, every Soldier must be authorized to out-process.

	d.  He was directed to stop out-processing and he was ordered to the WTB.

	e.  He did not choose the WTB, he was directed to the WTB.

	f.  He petitioned for inclusion in the WTB, but he did not put himself there, he was accepted and followed orders because his medical condition warranted him to do so.

	g.  He became a patient and he was no longer under Fort Knox's jurisdiction to out-process.

	h.  He belonged to the WTB until he was released and to date, he has not been released as a patient in the WTB.

	i.  He did out-process and was transferred to the Retired Reserve, but he was never released as a patient.
	j.  All of his paperwork was prepared and backdated without consideration to the implications of the delays associated with his inability to out-process.

	k.  Medical treatments scheduled during his active tour ceased and he was not able to access VA or post CO-ADOS medical coverage.

	l.  The ineptitude of three separate commands put his life in jeopardy with a very deadly form of cancer (melanoma).

	m.  At the time of his transition to the WTB, he was recovering from aggressive surgery to his face.

	n.  A major command level commander or higher had the authority, had he known, to extend his MRD or advocate for a retiree recall or some other vehicle to assure him of post-surgery success.

	o.  No one advocated to the appropriate level of authority to even attempt to offer an alternative solution to the limbo in which he found himself.

	p.  A lieutenant colonel without authority to release him as a patient made a determination on his case, who disapproved the extension of his MRD.

	q.  He contacted the Ireland Army Community Hospital Commander who rested his case on the lieutenant colonel's decision.

21.  Army Regulation 140-10 (Army Reserve Assignment, Attachments, and Transfers), paragraph 7-11 states that Soldiers erroneously retained beyond their 
MRD should be removed from active status when the error is discovered effective on the removal action date and not effective retroactively.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  While the available evidence shows that the applicant did submit a request for retention in the Army beyond his MRD, the MEDCOM Clinical Services Division notified HRC on 6 September 2012 that his request was denied.

3.  The evidence of record shows that he was fully aware of his MRD of 31 August 2012.  Although he contends he did not know that the orders assigning him to the WTU had been revoked, he continued to request an extension of his MRD through numerous avenues during September, October and November 2012.  There would have been no reason for him to continue to request an extension of his MRD if he believed he was still under active duty orders.

4.  The applicant states that he received no pay after 31 August 2012.  It is reasonable to presume that he, knowing he had gone beyond his MRD, chose to do so for the benefit of continuing his medical treatment with his assigned medical professional.  As he states in his email transmissions, he did not want to "start over" with the VA.  It was not until he learned that he would be responsible for any military medical treatment he received beyond his MRD that he decided to take the proper steps to out-process.

5.  According to HRC, the applicant had been told by numerous organizations on the installation that he needed to out-process and that he could not remain on active duty.  He has provided no evidence from medical officials showing that he attempted to out-process.  He has not provided any official documentation showing he was denied the opportunity to out-process prior to his MRD.

6.  The email transmissions he provided between himself and other Army officials explaining his status and requesting an MRD extension are insufficient proof that he was not permitted to out-process on or before 31 August 2012 as he contends.  There is no legal statute or policy which would allow the Army to have continued him on active duty past his MRD because his medical condition did not warrant his referral to the disability evaluation system.

7.  The applicant must accept responsibility for what happened in his case.  While there may have been some confusion resulting in the publication of numerous orders, there was no resulting error or injustice in the actions taken by the Army.

8.  In view of the foregoing, the applicant's request should be denied.

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.



ABCMR Record of Proceedings (cont)                                         AR20130008357





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ABCMR Record of Proceedings (cont)                                         AR20130008357



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