IN THE CASE OF:	   

		BOARD DATE:	  22 October 2014

		DOCKET NUMBER:  AR20130019831 


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/extension of his active duty orders under Title 10, U.S. Code (USC) that expired on 31 March 2013 be extended from 1 April 2013 to 4 September 2013 with entitlement to all back pay of allowances.

2.  The applicant states: 

	a.  Per Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separations) and DOD Instructions (DODI) 1241.2 (Reserve Component (RC) Incapacitation System Management), paragraph 6.6.3.2, he should have remained on Title 10 active duty orders until his date of medical retirement.  In addition to his regular pay and allowances, he should have also received monthly Physician Assistant Board Certification Pay (PABCP) of $500.00 and Medical Specialty Pay (MSP) of $416.00.  The monthly Base Pay plus the Basic Allowance for Subsistence (BAS) and the Basic Allowance for Housing (BAH) for the period 1 April 2013 to 4 September 2013 is estimated at $42,760.  Additionally, the monthly PABCP plus the MSP for the period 1 April 2013 to 4 September 2013 is estimated at $4,580.  The total pay and benefits due is approximately $47,340.00.  His active service should also be corrected to cover the period 1 April 2013 to 4 September 2013. 

	b.  On 3 February 2013, he was found unfit for continued military service by a physical evaluation board (PEB) while serving on Title 10, USC, section 12301(D) orders as a Physician Assistant Instructor at Fort Sam Houston, TX.  The PEB recommended that he be permanently medically retired.  His Title 10 orders at this time were set to end on 31 March 2013 and he requested multiple times through his command for his Title 10 orders to be extended so that he could complete his medical retirement processing.  He contacted everyone from his unit of assignment to the Texas Army National Guard (TXARNG) Adjutant General, the TXARNG Chief of Staff, National Guard Bureau (NGB), his PEB Liaison Officer (PEBLO), and the Soldiers' medical evaluation board (MEB) legal office.  He was repeatedly told that his Title 10 orders would not be extended despite him telling everyone that this is a violation of AR 635-40 and DODI 1241.2 in regard to RC Soldiers on Title 10, USC, 12301(D) orders undergoing MEB/PEB processing.  

	c.  Specifically, DODI 1241.2, paragraph 6.6.3.2 states, "An RC member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall with the member’s consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System Determination."  According to the regulations/law, he should have remained on Title 10 active duty orders until the date of his retirement of 4 September 2013.

	d.  After being unable to resolve this conflict over a period of months, he contacted his congressman with no results.  He received a reply letter back from the congressman but he failed to address the issue and simply sent him a reply he received from the NGB.  He then filed an Inspector General Action Request (IGAR) with the TXARNG IG office.  Major (MAJ) O’C----r in the TXARNG IG Office replied and stated that "he would not open a case with the IG office regarding his issue."  He then filed an IG action request with the NGB IG Office. The NGB IG office also refused to open a case to address his issue.  No matter whom he managed to talk to from NGB to the Texas command, to the IG office and his congressman, none of them would address the issue that he presented, that he should have remained on his active duty orders per the regulation/law as he had requested in order to complete his medical retirement.  He had multiple issues with processing his retirement because his active duty orders were cancelled.  His orders were ended on 31 March 2013, but he did not receive his release from active duty orders until 20 August 2013, though they backdated his release date to 31 March 2013.  He was officially medically retired on 4 September 2013. 

	e.  According to the law/regulations, he should have been on active duty for the entire period of 1 April through 4 September 2013 while his medical retirement was being processed.  Additionally, since he was denied the active duty orders and he did not have the active duty release orders, he could not obtain medical coverage.  Active duty medical would not cover him because he was not on active duty, and then he was not eligible for the 180 days of TRICARE coverage after mobilization to active duty because he did not have release orders or a DD Form 214 (Certificate of Release or Discharge from Active Duty).  He was also not eligible for TRICARE Retired because he was not retired yet.  He was forced to buy TRICARE Reserve Select insurance out of his own pocket to ensure his illness and his family was covered. 

	f.  There is really no excuse for the Army having a Soldier going through the MEB/medical retirement process to have to purchase their own medical insurance due to their failure to follow the laws/regulations covering reserve Soldiers on active duty orders undergoing MEB/PEB processing.  Therefore, he requests his active duty service period be corrected and that he receive back pay of all pay and allowances to include his PABCP and MSP for the period 1 April 2013 through 4 September 2013.

3.  The applicant provides: 

* DA Form 3349 (Physical Profile)
* DA Form 199 (Informal PEB Proceedings)
* Orders 022-271 (Full-Time National Guard Duty (FTNGD))
* Orders 273-095 (Active Duty for Operational Support - RC (ADOS-RC))
* Orders 272-003 (ADOS-RC)
* Orders 276-009 (Amendments)
* Email regarding MEB
* DD Form 214
* Disability retirement orders
* DA Form 1559 (IGAR)
* Email response from the IG
* Release from active duty orders
* DODI Number 1242-2

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and the TXARNG on 25 June 2004.  He completed the Army Medical Department Officer Basic Course. 

2.  He entered active duty on 20 September 2007 and subsequently served in Afghanistan from 22 December 2007 to 18 September 2008.  He was honorably released from active duty on 1 October 2008.  

3.  He held area of concentration (AOC) 65D (Physician Assistant) and he was promoted to captain (CPT) in the ARNG on 24 February 2009.  

4.  He entered active duty on 24 July 2009.  Multiple orders were issued by the TXARNG regarding his active service: 

	a.  Orders 152-377 issued on 1 June 2009 ordered him to temporary duty (TDY) FTNGD-Operational Support (OS) from 24 July 2009 to 30 September 2009, in accordance with Title 32, USC, section 505.

	b.  Orders 273-111 issued on 30 September 2009 are not available for review with this case. 

	c.  Orders 310-130 issued on 6 November 2009 amended the fund cite to Orders 273-111, dated 30 September 2009. 

	d.  Orders 280-113 issued on 10 December 2009 are not available for review with this case.

	e.  Orders 344-045 issued on 10 December 2009 amended Orders 280-113 to show the period of TDY as 1 November 2009 to 31 December 2009 (instead of 1 November 2009 to 31 January 2010).

	f.  Orders 355-056 issued on 21 December 2009 amended Orders 280-113 to show a different fund cite.

	g.  Orders 004-015 issued on 4 January 2010 revoked Orders 351-027, dated 17 December 2009 (not available for review). 

	h.  Orders 022-271 issued on 22 January 2010, ordered him to FTNGD-OS in a TDY status from 1 April 2010 to 30 September 2010.

	i.  Orders 147-580 issued by TXARNG on 27 May 2010 amended Orders 022-271 to show his period of TDY as 1 April 2010 to 31 May 2010.

	j.  Orders 273-095 issued on 30 September 2010 ordered him to active duty for ADOS-RC from 1 October 2010 to 30 September 2011 under Title 10, USC, section 12301(D).

	k.  Orders 272-003 issued on 29 September 2011, ordered him to active duty for ADOS-RC from 1 October 2011 to 30 September 2012.  

	l.  Orders 276-009 issued on 2 October 2012 amended Orders 272-003 to show the period of active duty as 1 October 2011 to 31 March 2013.  


5.  He was honorably released from active duty on 31 March 2013 to the control of his State ARNG unit by reason of completion of his required active service.  His DD Form 214 shows he completed 3 years, 8 months, and 7 days of active duty during this period.  

6.  On 20 August 2013, Headquarters, U.S. Army North (Fifth Army), Joint Base San Antonio, Fort Sam Houston, TX, published Orders 232-1112 honorably releasing him from active duty effective 31 March 2013.  His DD Form 214 was prepared at this time, in August 2013.

7.  Meanwhile, he had entered the Integrated Physical Disability Evaluation System (IDES) due to multiple medical conditions.  On 28 November 2012, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the conditions below.  The MEB recommended referral to a PEB.  He was counseled and agreed.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Chronic kidney disease, Stage IV

X
2.  Migraines (variants, cluster & tension 
X

3.  Hypertension 
X

4.  Allergic rhinitis 
X

5.  Acute sinusitis
X

6.  Nephrolithiasis 
X

7.  Urinary tract infection 
X

8.  Degenerative disc disease 
X

9.  Right knee tendonitis
X

10.  Plantar fascitiitis 
X

11.  Secondary hyperparathyroidism
X

12.  Anemia 
X

8.  On 3 February 2013, an informal PEB (IPEB) convened and found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to the conditions below.

	a.  The PEB rated his medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) Code 7530, Stage IV chronic kidney disease, rated at 60 percent.  The PEB also considered his other conditions, but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  
	b.  The applicant was counseled by a PEBLO and concurred with the findings and recommendations of the PEB on 12 February 2013.  The U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations on behalf of the Secretary of the Army on 19 February 2013. 

9.  On 31 July 2013, the USAPDA published Orders D212-13 ordering his retirement effective 3 September 2013 by reason of physical disability.  He was placed on the Retired List in his retired grade of CPT effective 4 September 2013.  

10.  An advisory opinion was received from the NGB on 23 September 2014 in the processing of this case.  The NGB advisory official stated: 

	a.  The applicant requests correction of his Title 10 Active Duty service period to include back pay of all pay and allowances for the service period of 1 April 2013 through 3 September 2013.  The NGB recommends approval. 

	b.  The applicant states that on 3 February 2013 he was found unfit for continued military service by a PEB while serving on Active Duty as a Physician Assistant instructor at Fort Sam Houston, TX.  The PEB recommended that the Soldier be permanently medically retired.  His Title 10 orders at this time were due to expire on 31 March 2013.   He further states that through his command, he requested multiple times for his Title 10 orders to be extended in order to complete his medical retirement processing but was unsuccessful.

	c.  He references DODI 1241.2, paragraph 6.6.3.2, dated 30 May 2001, which states "An RC member on Active Duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on Active Duty upon the expiration of call or order to Active Duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination."  He was not continued on Active Duty but was required to be kept on orders until the disability process was completed.  

	d.  He was on ADOS-RC orders at the time in question and per current policy guidance, the Soldier should have been retained on his current active status service order until the medical board process was completed.  Since he was found unfit with qualification to be placed on the Permanent Disability Retired List (PDRL), he should have been separated from Active Duty upon the date established by the USAPDA when they adjudicated the case.

	e.  An ADOS-RC Soldier identified in the first 25 days as having a pre-existing medical condition that renders the individual unable to perform the duties as assigned may be released from active duty immediately.  A reserve component Soldier having served on active duty for 26 days or more who is identified as having a pre-existing medical condition that he or she is not capable of meeting medical retention is required to undergo a MEB (AR 40-400) and or PEB (AR 635-40) (MEB/PEB) processing prior to release from active duty.

	f.  He should have been retained on active duty under the funding allotted for his ADOS RC tour at the time he entered into the disability evaluation process. Recommend his active duty orders service orders be amended to show the ending date of 3 September 2013.  He should be afforded the pay and entitlements of that additional period of service.  This recommendation was coordinated with the ARNG.  

	g.  The TXARNG does not concur with this recommendation. 

11.  The applicant responded to the advisory opinion on 1 October 2014.  He stated it is encouraging to see the NGB recommending approval of his request for correction of his Title 10 Active Duty Service period to include back pay of all pay and allowances for the service period of 1 April 2013 through 3 September 2013.  The five months that he was denied the continuation of his active duty orders for medical evaluation board processing and retirement was a very difficult time for him and his family.  In addition to receiving no pay, he also had to purchase health and dental Insurance for his family and himself out of his own pocket.  Additionally, he could not return to his civilian job at the Department of Veterans Affairs hospital because he was not officially retired until 4 September 2013 and did not have a DD Form 214.  During the service period 1 April 2013 through 3 September 2013 he should have received his base pay and allowances (BAS, BAH) plus his monthly Physician Assistant Board Certification pay and monthly Medical Specialty pay.  

12.  A second advisory opinion was received from the Office of The Surgeon General (OTSG) in the processing of this case.  An OTSG official stated: 

	a.  Applicant is requesting payment of Health Professions Officer Board Certificate Pay (HPOBCP) at $6,000/year and Health Professions Officer Incentive Pay (HPOIP) at $5,000/year while retained on active duty 20130401-20130904, pending the results of a PEB.  He indicates he never received these special pays during this period.

	b.  Based on requests and documents submitted for HPO special pay upon activation/mobilization, this office is limited to only determining eligibility and authorizations.  Authorizations from this office are forwarded to the Reserve Component Defense Finance and Accounting Service- Indianapolis Center (RC DFAS-IN), the responsible agent for disbursing payment of HPO special pay during activation/mobilization.  The HPO special pays are paid on a prorated basis for actual time served, retroactive to mobilization date, after completion of 30-consecutive days of active duty.

	c.  A review of his ABCMR application and available officer special pay and finance data indicates that although he was eligible, he did not receive HPOBCP or HPOIP during the activated period 20130401-20130903.  Date of retirement is 20130904.  

	d.  He was eligible to receive the following HPO special pay during the ADOS-RC activated period 20130401-20130903, totaling approximately $4,675 as follows: (1) HPOBCP rate $6,000/year prorated payment for period approximately $2,550; and (2) HPOIP at $5,000/year, prorated payment for period approximately $2,125.  

	e.  If in reviewing officer's finance file RC-DFAS-IN finds any undisclosed payments of HPO special pay, the above payments would be subject to recalculation.  

13.  The applicant responded on 6 October 2014 to the second advisory opinion from OTSG indicating his concurrence. 

14.  Title 10, U.S. Code, section 12301 states in:

	a.  Section 12301(d), at any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member.  However, a member of the ARNG may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.

	b.  Section 1201(h), states: 

		(1)  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 (A) to receive authorized medical care; (B) to be medically evaluated for disability or other purposes; or (C) to complete a required Department of Defense health care study, which may include an associated medical evaluation of the member. 

		(2)  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.

		(3)  A member of the ARNG may be ordered to active duty under this subsection only with the consent of the Governor or other appropriate authority of the State concerned.

15.  DODI 1241.2 implements policies, assigns responsibilities, and prescribes procedures to authorize medical and dental care for members of the RC who incur or aggravate an injury, illness, or disease in the line of duty and provide pay and allowances to those members while being treated for or recovering from a service-connected injury, illness, or disease, or who demonstrate a loss of earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.  

	a.  Paragraph 6.6.1. Medical Evaluation and Other Purposes.  An RC member may be ordered to active duty, with the consent of the member, under Title 10, USC, section 12301(h) when authorized by the Secretary concerned and, in the case of a member of the ARNG, with the consent of the Governor or other appropriate authority of the State concerned, to receive authorized medical care, to be medically evaluated for a disability or other medical purposes as determined by the Secretary concerned, or to complete a required DOD health study, which may include an associated medical evaluation of the member.  An RC member may also be retained on active duty under Section 12301(h) of reference (b), as determined by the Secretary concerned, for medical treatment associated with the study or evaluation, if the treatment of the member is otherwise authorized by law.

	b.  Paragraph 6.6.3.2. An RC member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a DES determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty on 24 July 2009, initially under Title 32, USC, section 505 (Full-Time National Guard).  His orders were amended several times by the TXARNG.  His State active duty orders expired on 31 May 2010.  

2.  On 30 September 2010, TXARNG published orders ordering him to active duty under Title 10, USC, section 12301(d) (not section 12301(h) as he believes), from 1 October 2010 to 30 September 2011.  He was then issued a second set of orders also ordering him to active duty from 1 October 2011 to 30 September 2012, which were amended to read 1 October 2011 to 31 March 2013.  

3.  Prior to expiration of his active duty orders, he appears to have incurred an injury of an illness that warranted his entry into the disability system.  He underwent an MEB on 28 December 2012 that referred him to a PEB.  The PEB convened on 3 February 2013 and recommended his permanent retirement.  He concurred on 12 February 2013 and the USAPDA approved it on behalf of the Secretary of the Army on 19 February 2013.  

4.  Meanwhile, his Title 10 orders expired on 31 March 2013.  For unknown reason, the orders that released him from active duty were not published until 20 August 2013.  Also for unknown reasons, he digitally signed his resultant DD Form 214 also on 20 August 2013, despite having been permanently retired.  Finally, his medical retirement orders were also not published until 31 July 2013, placing him on the Retired List effective 4 September 2013.  

5.  It is clear that several administrative errors were committed in the administrative processing of his orders.  First, it is unclear why the orders releasing him from active duty and resultant DD Form 214, ending on 31 March 2013, were not issued until August 2013.  Second, it is unclear why his State did not extend him on active duty knowing he was undergoing medical processing.  Third, it is unknown why his PEB was approved in February 2013 but his disability retirement orders were not published until September 2013.  

6.  As a matter of equity only, his records should be corrected to show he was extended on active duty from 1 April 2013 to 3 September 2013 with entitlement to back pay and allowances (including special pay).  

7.  Although the applicant originally requested to remain on active duty to            4 September 2013, it appears that in his response to the advisory opinion he understands that he meant 3 September 2013, as his retirement orders placed him on the Retired List effective 4 September 2013.




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 records of the individual concerned be corrected by:

* revoking Orders 232-1112, issued by Headquarters, U.S. Army North (Fifth Army), Joint Base San Antonio, TX on 20 August 2013 and showing he was extended on active duty until his retirement
* voiding his DD Form 214, issued by Fort Sam Houston on 20 August 2013
* reissuing him a new DD Form 214 reflecting his disability retirement effective 4 September 2013
* paying him back pay and allowances (including medical special pay, if authorized) as a result of this 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.


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ABCMR Record of Proceedings (cont)                                         AR20130019831



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