IN THE CASE OF:	  

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130016048 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's records as follows:

* reinstatement in the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program
* payment of all back pay and allowances from 5 April 2004, the date he was declared fit for duty, to the date of reinstatement
* removal and/or correction of his military records which indicate he was not in the AGR Program when he was supposed to be
* correction of his records to show no break in service from 5 April 2004 to the date of reinstatement

2.  Counsel provides a brief history of the applicant's military service and the conditions that led to his medical evaluation board (MEB) and subsequent physical evaluation board (PEB) which placed him on the Temporary Disability Retired List (TDRL).  Counsel further chronicles the TDRL PEB that determined the applicant was fit and how the USAR failed to return him to active duty in the AGR Program.  Counsel makes the following argument:

* the applicant should have been automatically returned to active duty upon being found physically fit in April 2005 as stipulated in Title 10, U.S. Code (USC), section 1211(a)(1)
* the applicant should have been returned to an AGR status within a reasonable time after being found physically fit for duty and his records should be corrected to reflect this
* the applicant's decision not to accept a position in the AGR Program in 2008 without knowing the full ramifications of the 3-year delay and his attempts to learn the ramifications were reasonable and should not affect the remedies sought

3.  Counsel provides:

* DA Form 67-9 (Officer Evaluation Report) for the period 29 July 2000 through 31 May 2001
* MEB Narrative Summary (NARSUM), dated 18 September 2001
* page 5 of 6 of the applicant's U.S. Army Human Resources Command (HRC) Integrated Web Services (IWS) Soldier Management System (SMS) Contacts and Cases transaction summary
* Standard Form 88 (Report of Medical Examination), dated 12 September 1999
* Standard Form 93 (Report of Medical History), dated 12 September 1999
* DA Form 199 (PEB Proceedings), dated 12 June 2002
* TDRL PEB, dated 5 April 2004
* email exchange between the applicant and a representative from the Walter Reed Army Medical Center
* U.S. Army PEB memorandum, dated 5 April 2004, subject:  Removal from the TDRL, and the applicant's election
* Defense Finance and Accounting Service (DFAS) letter, dated 7 December 2007
* letter to the applicant's Member of Congress, dated 31 January 2008

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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.  The applicant's records show he was born in March 1966.

3.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 10 June 1989.

4.  He entered active duty on 8 October 1990 and he completed the Army Medical Department (AMEDD) Officer Basic Course.  He was promoted to captain on 1 June 1994 and to major (MAJ) on 1 June 2001.

5.  Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Orders 173-1003, dated 22 June 2001, reassigned him to the U.S. Army Transition Point for separation processing effective 11 August 2001.

6.  He was honorably released from active duty on 11 August 2001 and transferred to the 399th Combat Support Hospital, USAR, Taunton, MA.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of active duty shows he completed 10 years, 10 months, and 4 days of active service.

7.  USAR Personnel Command Orders R-06-103704, dated 11 June 2001, ordered him to active duty in an AGR status for a period of 3 years effective 12 August 2001 with assignment as a medical operations officer to the 399th Combat Support Hospital, USAR, Taunton, MA, under Title 10, USC, section 12301D.

8.  Apparently the applicant complained of increasing anxiety at some point.  He underwent a medical examination that led to a finding of one or more conditions that failed retention standards.  His NARSUM, dated 18 September 2001, shows he reported about 3 months of progressively-increasing anxiety with intermittent panic attacks.  The onset of his anxiety began in 1998.  His final diagnosis was panic attack with agoraphobia and depressive disorder.

9.  On 12 June 2002, an informal PEB convened and found he was physically unfit to perform the duties of his grade and military specialty.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), code 9412, describing his disability as a recurrent panic disorder without agoraphobia which had not responded to treatment with anti-anxiety medications and supplementary psychotherapy.  The PEB recommended a combined physical disability rating of 30 percent and placement on the TDRL with a future reexamination in 2004.  He appears to have concurred.

10.  USAR Personnel Command Orders C-09-291525, dated 5 September 2002, released the applicant from his assignment and duty because of physical disability effective 26 October 2002 and placed him on the TDRL in the rank/pay grade of MAJ/O-4 effective 27 October 2002.

11.  He retired on 26 October 2002 and he was placed on the TDRL on 27 October 2002.  His DD Form 214 for this period shows he completed 1 year, 2 months, and 15 days of active service.

12.  On 5 April 2005, a TDRL convened and determined the applicant's reexamination indicated his condition had improved since his placement on the TDRL to the point that there was no functional impairment that precluded the satisfactory performance of his duties.  The PEB determined he was fit for duty.  The PEB noted that he may return to active duty or active Reserve status with his consent.

13.  A U.S. Army PEB memorandum, dated 5 April 2004, subject:  Removal from the TDRL, informed the applicant that the PEB had recommended his removal from the TDRL and that he must indicate his agreement or disagreement.  If he elected to submit a rebuttal, the rebuttal must be fully justified and based on new medical evidence pertaining to his case.  Item 13 of his TDRL PEB shows he was counseled on 5 April 2004, he concurred, and he waived his right to a formal hearing of his case.

14.  On 11 July 2004 after being informed of the TDRL PEB finding, the applicant concurred and consented to reappointment to the USAR as provided in Title 10, USC, section 1211.  He also acknowledged he understood that regardless of his election, his status on the TDRL and retired pay would be terminated and, if he did not consent to reappointment, he would be discharged.  He added the following handwritten statement:

I request reappointment as an AGR officer as I was counseled by the PEBLO [PEB Liaison Officer] representative prior to accepting my PEB placement on the TDRL.  If involuntarily not allowed to return to active duty, request separation pay IAW [in accordance with] Title 10, section 1174 and 1141.

15.  On 19 August 2002, he corresponded by email with a representative from the Walter Reed Army Medical Center regarding his TDRL PEB.  He specifically asked, "6.  If found fit for duty while on the TDRL, do I have to return to duty, am I guaranteed return to duty if I desire and will this be AGR/RA [Regular Army]/or Reserve duty?"  The WRAMC representative responded, "6.  No.  You could opt not to come back on AGR status.  If you elected to return to duty, you would be returned to duty as an AGR Officer."

16.  It is unclear from the official records what transpired between 2004 and 2007.  Most of the following evidence is not filed in the official records.  The applicant and/or his counsel provided selected documents.

17.  In a letter, dated 7 December 2007, DFAS notified the applicant that the disability retired pay of a member carried on the TDRL terminates not later than 5 years after the member's name is placed on the list.  Termination of pay does not affect or alter the status of a member on the TDRL; such status continues until the member is removed from the TDRL and is either transferred to the Permanent Disability Retired List, found fit for duty, or separated with or without severance pay.  The termination date of his 5-year period on the TDRL expired effective 27 October 2007.

18.  On 31 January 2008, a Department of the Army Office of the Chief of Legislative Liaison (OCLL) representative corresponded with the applicant's Member of Congress.  The OCLL representative stated:

	a.  On 5 April 2004 as a result of the applicant's periodic TDRL reexamination, a PEB determined the applicant was fit for military duty and recommended his removal from the TDRL.  He agreed and his case was finalized on 5 November 2004.  He indicated he would like to return to duty.

	b.  Under current law (Title 10, USC, section 1211), if a Reserve officer is found fit while on the TDRL, he will be reappointed as a Reserve officer for service in his Reserve Component in the Reserve grade held by him when his name was placed on the TDRL or appointed in the next higher Reserve commissioned grade as the case may be upon his consent/request.  After reappointment, the Reserve officer can reapply to enter the active duty Reserve programs.

	c.  The applicant entered his initial tour of duty in the AGR Program on 12 August 2001.  He was placed on the TDRL on 27 October 2002.  He was informed he was found fit for duty on 5 April 2004 and would be removed from the TDRL.  However, he was not removed from the TDRL until 27 October 2007 when HRC received notification of his removal.

	d.  Research revealed no legal action was initiated against him; therefore, he was eligible for reinstatement in the AGR Program in the rank of MAJ.

19.  There is no evidence in his records indicating what transpired between 2008 and 2011.

20.  A letter from the Chief, Reserve Accessions and Appointments Branch, HRC, dated 31 August 2011, notified the applicant that HRC was working administrative actions to complete his reappointment in the USAR.  As required by law, his name had been forwarded to the Office of the Secretary of Defense (OSD) for scrolling.  A DA Form 71 (Oath of Office) was enclosed for the applicant's signature at the appropriate time.  He was advised that the oath could not be executed prior to the date of the OSD scroll approval.  This letter also served as the authority for the applicant to report to the nearest Military Entrance Processing Station or Department of Defense facility to have a physical examination.  Additionally, he was required to hold a minimum Secret security clearance.  He was advised to contact the HRC Security Office regarding security requirements.

21.  On 21 September 2011, the Secretary of Defense appointed the applicant as a Reserve commissioned officer of the Army in the grade of MAJ (i.e., he was scrolled).

22.  There is no indication in the applicant's records that he executed an oath of office, completed the required security questionnaire, or underwent an appointment physical examination.

23.  An advisory opinion was rendered by HRC, dated 28 October 2013, in the processing of this case.  HRC stated the applicant retired and was placed on the TDRL in November 2002 (i.e., effective 27 October 2002).  On 31 August 2011, he was notified of his pending fit for duty case and the required documentation for its completion.  As a result of several failed attempts to contact him regarding submission of the documentation, his return to duty was not completed.  At this time he is still retired and automatic reinstatement in the AGR Program without going through the application process is not an option.  At this time, the date of rank (DOR) cutoff for MAJ's applying for the AGR Program is 1 January 2010.  Those officers with an earlier DOR are too senior for the program.  The applicant's DOR is 1 June 2001.

24.  The applicant's counsel responded to the advisory opinion on 14 November 2013.  He stated the advisory opinion is based on the dubious factual premise that the Army notified the applicant of his pending fit for duty case in August 2011 and that several attempts were made to collect the required documentation.  In effect, the advisory opinion tries to shift the blame to the applicant.  As stated in the original submission, the applicant's case contains several processing errors dating back to 2004.  The advisory opinion relates only to the recent contact in 2011 regarding the applicant's Reserve appointment.  In any case, the applicant responded promptly and complied with the needed security requirements.  He mailed the fingerprint card back to HRC.  He was unable to take a physical at the Military Entrance Processing Station without an authorization.  He also did not mail his oath of office because he thought the security clearance was a prerequisite to completing the oath of office.  The Army made several mistakes and failed to respond to the applicant.  The main issue remains that the Army erred in failing to return him to active duty in 2004.  Had he been returned to active duty, he would not have had to obtain a security clearance or undergo another physical.  The arguments in the advisory opinion are immaterial to the applicant's issue.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

26.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL for the maximum period of 5 years allowed by Title 10, USC, section 1210, when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

27.  Title 10, USC, section 1211, provides the following:

	a.  With his or her consent, any member of the Army or the Air Force whose name is on the TDRL and who is found to be physically fit to perform the duties of his or her office, grade, or rank under section 1210(f) of this title, shall:

		(1)  if a commissioned officer of a Regular Component, be recalled to active duty and, as soon as practicable, may be reappointed by the President, by and with the advice and consent of the Senate, to the Active Duty List in the Regular grade held by him or her when his or her name was placed on the TDRL or in the next higher Regular grade;

		(2)  if a warrant officer of a Regular Component, be recalled to active duty and, as soon as practicable, be reappointed by the Secretary concerned in the Regular grade held by him or her hen his or her name was placed on the TDRL or in the next higher Regular warrant grade;

		(3)  if an enlisted member of a Regular Component, be reenlisted in the Regular grade held by him or her when his or her name was placed on the TDRL or in the next higher Regular enlisted grade;

		(4)  if a commissioned, warrant, or enlisted Reserve, be reappointed or reenlisted as a Reserve officer for service in his Reserve Component in the Reserve grade held by him or her when his or her name was placed on the TDRL or appointed or enlisted in the next higher Reserve commissioned, warrant, or enlisted grade, as the case may be;

		(5)  if a commissioned, warrant, or enlisted member of the Army National Guard of the United States or the Air National Guard of the United States when the disability was incurred, and if he or she cannot be reappointed or reenlisted as a Reserve for service therein, be appointed or enlisted as a Reserve for service in the Army Reserve or the Air Force Reserve, as the case may be, in a grade corresponding to the Reserve grade held by him or her when his or her name was placed on the TDRL or in the next higher Reserve commissioned, warrant, or enlisted grade, as the case may be; and

		(6)  if a member of the Army, or the Air Force, who has no Regular or Reserve grade, be reappointed or reenlisted in the Army or the Air Force, as the case may be, in the temporary grade held by him or her when his or her name was placed on the TDRL or appointed or enlisted in the next higher temporary grade.

	b.  This paragraph applies to members of the Coast Guard.

	c.  This paragraph applies to members of the Fleet Reserve or the Fleet Marine Corps Reserve.

	d.  Disability retired pay of a member covered by this section terminates:

		(1)  on the date when he or she is recalled to active duty under subsection (a)(1) or (2) or subsection (b)(1) or (2), for an officer of a Regular Component;

		(2)  on the date when he or she resumes his or her status in the Fleet Reserve or the Fleet Marine Corps Reserve under subsection (b)(4), for a member of the Fleet Reserve or the Fleet Marine Corps Reserve; and

		(3)  on the date when he is appointed, reappointed, enlisted, or reenlisted, for any other member of the Armed Forces.

28.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, USC, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 7-11 provides for the disposition of TDRL Soldiers.  Paragraph 7-11a(3) states that if a member is determined to be physically fit to perform the duties of his or her office, grade, rank, or rating and is otherwise administratively qualified, former members of the USAR will be reappointed or reenlisted in the USAR in the grade held on the day before the date placed on the TDRL or in the next higher grade or transferred to the Retired Reserve, if eligible, subject to their consent.  They may request active duty under USAR regulations.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant entered active duty as a member of the USAR on 12 August 2001.  He was not a Regular Army officer – he was a Reserve officer serving on active duty.  While serving on active duty, he sustained a medical condition that rendered him unable to perform the duties required of his grade and military specialty.  He appears to have been considered by an MEB that referred him to a PEB.  The PEB rated his condition and recommended his placement on the TDRL.  He concurred with the PEB recommendation.

2.  Upon reexamination, a TDRL PEB determined his condition had improved to such an extent that he was determined to be fit for duty.  As such, the TDRL PEB recommended his removal from the TDRL on 5 April 2004.  At that point, by law and regulation, the applicant was only entitled to reappointment in the USAR.  He did not have the right or the option to place contingencies on his reappointment.  His options were reappointment in the USAR or discharge.  The AGR Program, as the name indicates, is just that – a program within the USAR, no different than other programs.  It is not a component of the Armed Forces.

3.  Despite being found fit for duty – and knowing he was no longer on the TDRL – the applicant continued to draw retired pay until 2007.  He has neither accepted reappointment in the USAR nor executed an oath of office.

4.  The applicant raised the issue again in 2011, some 4 years after his retired pay stopped.  This time, he engaged HRC.  The date entered in the HRC IWS SMS clearly shows HRC officials processed his application for reappointment as evidenced by the fact that he was scrolled.  Yet he failed to execute an oath of office, failed to take a reappointment physical (despite being given an authorization), and failed to submit his completed security questionnaire.

5.  It appears that his counsel misinterprets the law.  Counsel argues that the applicant "should have been automatically returned to active duty upon being found physically fit in April 2005, as stipulated in Title 10, USC, section 1211(a)(1)."  This is not accurate.  The law allows a commissioned officer of a Regular Component to be recalled to active duty.  The applicant was not a member of a Regular Component – he was a member of a Reserve Component. 
The law allows for reappointment of a USAR officer in the USAR, not to active duty.  A Reserve officer must apply for entry on active duty.

6.  After a comprehensive review of the available evidence and the argument provided by the applicant and/or his counsel, it is clear that not only did he fail to show an error or an injustice, he has equally failed to explain his receipt of TDRL retired pay from April 2004 to 2007, failed to exercise due diligence between 2004 and 2007, and failed to execute an oath of office confirming his acceptance of reappointment after having been scrolled in 2011.  He is not entitled to any of 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)                                         AR20130016048



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ABCMR Record of Proceedings (cont)                                         AR20130016048



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