IN THE CASE OF

		BOARD DATE:	  2 September 2013

		DOCKET NUMBER:  AR20130020880 


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requests, in effect, that her discharge from the Army National Guard (ARNG), Active Guard Reserve (AGR) Program, be rescinded and she be referred for processing in the Physical Disability Evaluation System (PDES).

2.  The applicant states that in May 2010 she was notified she was a two-time
non-select for promotion to major (MAJ)/pay grade O-4 because she had not completed her Bachelor of Science in Nursing (BSN) degree.  However, the Selective Continuation (SELCON) board allowed her to complete the remaining years of service in the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR), which she elected to do.

   a.  She was issued orders to report to the Transition Point, Fort Bragg, NC, on 23 September 2010.  At that time, it was discovered that she had not completed a separation physical examination or a Post-Deployment Health Reassessment. She was instructed not to out-process for separation until the medical issues found during her physical examination were addressed.  She inquired into her status and what should occur next.  Transition point personnel informed her that she was assigned to the transition point, placed on medical hold to complete her medical consultations, and was to return to complete out-processing upon receiving medical clearance.


   b.  On 24 September 2010, she began her medical consultations.  A series of tests and evaluations ultimately led to surgery and she was discharged from the hospital on 23 November 2010.  She was also referred to a network provider in her area of residence to address other medical issues.
   
   c.  In November 2010, she was notified to complete a second mammogram based on the results of her initial examination.  The results of the examination discovered a fibrous cyst that would require a biopsy.  On 17 December 2010, she was referred to a network provider to complete the biopsy.  After a series of appointments and evaluations, she underwent bilateral breast surgery (mastectomy) and insertion of breast prostheses (breast implants).  She also underwent another lithotripsy (kidney stone removal surgery) and a surgical procedure that required cervical fusion of the spine that resulted in major neurological complications.
   
   d.  Throughout this period she remained in communication with transition point personnel and also received guidance from the attending physicians at Womack Army Community Hospital (WACH).
   
   e.   A physician then diagnosed her with demyelinating disease, which is a disease of the nervous system in which the myelin sheath of neurons is damaged.  (This condition causes deficiency in sensation, movement, cognition, or other functions depending on which nerves are involved.)  The physician determined that the condition rendered her medically disqualified for continued service and required a Medical Evaluation Board (MEB).  Medical officials also cited the need for her to be assigned to the Warrior Transition Unit (WTU) in order to complete her remaining medical treatment plan (physical therapy) and MEB.  She adds that it was becoming more difficult for her to travel to Fort Bragg, NC, and a determination was made that a Community-based WTU would be a better fit for her situation and condition.

   f.  On 18 May 2011, she contacted the U.S. Army Human Resources Command (HRC) and requested a change in her orders.  Her pay had been stopped, so she also contacted the Defense Finance and Accounting Service (DFAS) to resolve the issue.  She was told that her military pay record appeared in both the Reserve Component (RC) and Active Component (AC) pay systems.  She was instructed to provide copies of orders placing her on active duty and the orders that revoked her USAR IRR status.  On 6 September 2011, she provided the orders to DFAS and her pay was restarted.

   g.  She was assigned a WTU case manager and the process began to get her reassigned to the Community-based WTU that was in commuting distance of her home.  She was told that, even though she was assigned to the transition point, her previous unit had to approve her transfer to the WTU.  After several months of trying to resolve the matter, she sought assistance from the Ombudsman, Transition Point Personnel and WTU case manager, who contacted HRC to resolve the matter.

   h.  Without any consultation or supporting documents to review, her HRC career manager concluded that she should have been discharged, her medical conditions were fabricated, and she was improperly receiving military pay and committing fraud.  Consequently, orders were issued for immediate separation.  However, the DD Form 214 that she was issued discharged her from the wrong component, was effective the same date as directed in her original separation orders, and she did not sign the DD Form 214.

   i.  Military officials never took into consideration that she was undergoing medical treatment or the financial impact that a discharge would have on her. Instead, a U.S. Army Criminal Investigation Command (CID) investigation was initiated and she no longer had access to military medical care.  She attempted to use the Department of Veterans Affairs (VA), but was informed the VA could not assist her due to inconsistencies in her DD Form 214.  Her attempts to obtain assistance from transition point personnel and HRC officials were unsuccessful.

   j.  She contacted the Army Reserve Command Inspector General (IG) and filed a complaint in an effort to get the discharge rescinded.  The IG assisted with restarting the MEB process, but determined they could not move forward with the discharge action until the CID investigation was completed.  The IG eventually received the results of the CID investigation and the allegations of fraud were not substantiated.  The Fort Bragg CID office advised that they provided the report to HRC on 17 December 2012; however, the applicant did not receive information from HRC regarding her situation/status.

   k.  She concludes by stating she followed the guidance provided to her by personnel at the transition point and medical facilities, yet she was severely penalized.  She has an insurmountable financial debt due to complications from her surgery and her medical conditions have rendered her disabled.  The effects are compounded by the fact that she is unable to complete her physical therapy plan or receive medicine that makes the effects of the disease manageable.  In addition, she is unable to obtain medical treatment from the VA because of the inconsistencies in the DD Form 214 she was issued.

3.  The applicant provides two binders with Exhibits A through S and Exhibits A through F, respectively, that are identified and summarized by the applicant in her statements (and above) in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer, in the rank of second lieutenant, Army Nurse (AN) Corps, on 27 February 1996.

2.  She was promoted to captain (CPT)/pay grade O-3 on 3 November 2002.

3.  A DD Form 214 shows the applicant entered active duty on 8 August 2004, was honorably released from active duty (REFRAD) on 4 June 2006, and transferred to a USAR unit.  She had completed 1 year, 9 months, and 26 days of net active service this period.

4.  Orders issued by HRC, Alexandria, VA, show:

* Orders A-04-609386, dated 20 April 2006, ordered the applicant to active duty as a member of the USAR, on 2 August 2006, for 365 days
* Orders A-04-609386R, dated 11 May 2006, revoked Orders A-04-609386, dated 20 April 2006

5.  HRC, St. Louis, MO, Orders R-04-683151, dated 25 April 2006, as amended by Orders R-04-683151A01, dated 10 December 2008, ordered the applicant to active duty in an AGR status on 5 June 2006 for an indefinite period.

6.  On 26 May 2010, the applicant acknowledged receipt of notification that a SELCON Board recommended her for continuation in her present grade.  As such, as an AGR officer, she must be REFRAD from the AGR Program no later than 120 days after receipt of the involuntary release notification.  The applicant accepted continuation on the Reserve Active-Status List (RASL) in the Ready Reserve until she would complete 20 years of commissioned service.

7.  HRC, St. Louis, MO, Orders C-06-009474, dated 25 June 2010, released the applicant from the 320th Combat Support Hospital, Greensboro, NC and reattached her to Fort Bragg, NC.  The cited authority shows Army Regulation 600-8-24 (Officer Transfers and Discharges), do not assess into the strength of the Active Army.

8.  HRC, St. Louis, MO, Orders C-06-090442, dated 25 June 2010, released the applicant from active duty on 23 September 2010, not by reason of physical disability, and assigned her to the USAR Control Group (Reinforcement), 
St. Louis, MO.  The additional instructions show the applicant was entitled to full separation pay and, if she should subsequently qualify for retired or retainer pay, she shall have deducted an amount equal to the total amount of separation pay not previously recouped.
9.  A DD Form 214 shows the applicant was honorably REFRAD based on completion of required active service and transferred to the USAR Control Group (Reinforcement).  It also shows in -

* item 2 (Component):  "Army/ARNGUS/AN"
* item 12 (Record of Service) –

* block a (Date Entered Active Duty):  5 June 2006
* block b (Separation Date This Period):  23 September 2010
* block c (Net Active Service This Period):  4 years, 3 months, and
19 days

* item  21 (Signature of Soldier Being Separated):  "Not Available To Sign"

10.  The applicant provides the following additional documents in support of her request:

   a.  medical consults for urology, psychology, psychiatry, podiatry, and dermatology, dated 24 September 2010;

   b.  WAMC memorandum, dated 23 November 2010, that authorized the applicant 10 days convalescent leave;

   c.  Health Net Federal Services letter, dated 27 July 2011, that authorized the applicant surgical care from 19 July 2011 to 21 November 2011 for follow-up visits for Solitary Cyst of Breast and Atrophy of Breast;

   d.  Carolina Neurosurgery letter that shows the applicant was scheduled for surgery (Anterior Cervical Discectomy with fusion and plating) on 3 May 2011;

   e.  White Oak Family Physicians, memorandum for record, dated
6 September 2011, that shows Doctor Lynley S. H---, recommended the applicant for an MEB and transfer to Community-based WTU health care;

   f.  email messages, dated 6 and 7 September 2011, between DFAS officials and the applicant that show she had both RC and AC pay accounts and that she provided copies of both her USAR and AGR active duty orders to DFAS;

   g.  HRC records of conversation that show on:

* 18 May 2011, she inquired into the status of her orders and retention on AD and was advised to contact her career manager
* 1 March 2012, she requested assignment to a WTU; she was being paid AC pay
* 13 March 2012, her last physical profile, dated 29 July 2010, showed a "PULHES of 112111"
* 14 March 2012, the applicant's accountability for the past 2 years was discussed and "she stated that she saw no end date on her orders"
   
   h.  MFR, dated 21 May 2012, that shows Doctor Theodore L. A----, Chief, Physical Evaluation System (PES), WAMC, indicated the applicant was not fit for duty and was referred to an MEB;

   i.  email message thread, dated 13 March 2012, between the Assignments Officer, AN Corps Reserve Branch, HRC and Chief, Military Personnel Division (MPD), Fort Bragg, NC, that shows the applicant had knowledge of her separation from the AGR program in 2010 and, based on her physical profile, dated 29 July 2009, she met Army standards without limitations.  The Chief, MPD, was instructed to prepare a DD Form 214 documenting her separation on 23 September 2010.

   j.  Headquarters, USAR Command, Fort Bragg, NC, Office of the IG, memorandum, dated 18 April 2013, that shows the applicant initiated an IG Action on 23 March 2012 requesting assistance with addressing incomplete 
out-processing procedures, initiating an MEB, and improper discharge.

    	(1)  The IG found the applicant was not properly out-processed prior to being discharged, her condition (demyelinating disease) made her medically unfit for retention, and she was not properly discharged.  It added:

    	(a)  WACH staff or Fort Bragg Transition Point personnel failed to contact HRC to request an extension of her orders when she was placed on medical hold.

    	(b)  MEB action was initiated, but improperly terminated when the CID investigation was started.  (The IG referred this aspect of the applicant's request to the HRC Surgeon's Office.)

    	(c)  A CID investigation was initiated when it was learned that the applicant was still in an Active status; however, a preliminary inquiry was not conducted to determine the circumstances nor was the HRC Special Actions Branch notified.

    	(2)  The IG added that, "While all of [the applicant's] issues/concerns were founded, this office has no authority to direct the correction of your DD Form 214, have your discharged [sic] overturned, or have you reassigned to a WTU so that you can complete your medical board and properly out process."

   k.  Extract of HRC policy that shows, "AGR Soldiers are not eligible for MRP [Medical Review Processing] or ADME [Active Duty Medical Extension] as they are already on Active Duty.  AGR Soldiers who are pending retirement or REFRAD, and who sustain medical injury or have a medical condition that warrants entry into the WTU will be retained until treatment is complete.  Once released from the WTU, the separation process will continue.  If the WTU eligibility criteria is not met, these Soldiers may retire or be REFRAD and receive treatment from the VA or utilize their TRICARE benefits, if eligible."

   l.  WAMC memorandum, dated 21 March 2012, subject:  Continued Medical Care, that shows Elizabeth M. K---, Profile Review, Medical One Stop, Department of Deployment Health, states the applicant was seen on 
24 September 2010 to initiate medical clearance for separation, but she was not cleared due to on-going medical concerns.

   m.  WAMC memorandum, dated 11 April 2012, subject:  Continued Medical Care, that shows Theodore L. A----, Medical Doctor, Chief, PES, stated the applicant was seen on 24 September 2010 to initiate medical clearance for separation, but she was not cleared due to on-going medical concerns.

   n.  Three DD Forms 2808 (Reports of Medical Examination), dated
14 September 2011, 22 February 2012, and 22 August 2013, that show Doctor Theodore L. A----, Chief, PES, found the applicant "Not Qualified for Service – Not Fit for Duty."

   o.  DA Forms 3349 (Physical Profiles), dated 7 March 2011; 7, 8, and
14 September 2011; 10 February, 18 May, 29 August, and 10 September 2012; and 11 January and 4 September 2013.  The physical profiles document the applicant's medical conditions and physical profiles throughout the identified period.  On 7, 8, and 14 September 2011, 10 February, 18 May, and 29 August 2012 they recommended her for review by an MEB; on 10 September 2012, she had a "current operative PULHES of 112111";  on 11 January 2013, she did not require an MEB; and on 4 September 2013, Doctor Theodore L. A---- indicated that he expected the applicant to be fully mission capable on 3 December 2013.





11.  In the processing of this case, an advisory opinion was obtained from the Command Surgeon, HRC, Fort Knox, KY.

   a.  The advisory official recommends denial of the applicant's request that her REFRAD orders be revoked or rescinded to allow her to complete the Integrated Disability Evaluation System (IDES).

   b.  He states that on 25 June 2010, as a result of becoming a two-time 
non-select for promotion to MAJ, the applicant was issued orders releasing her from active duty on 23 September 2010 and transferring her to the USAR (Ready Reserve). On that date, she had a PULHES of 111211.

* The physical profile serial system (PULHES) categories are –

* P - Physical capacity or stamina
* U - Upper extremities
* L - Lower extremities
* H - Hearing and ears
* E - Eyes
* S - Psychiatric

   c.  He states the applicant's PULHES at the time she was being separated from active duty did not warrant a profile review or her referral to an MEB.  In addition, the applicant continued to perform her duties up until the time she reported to the Transition Point for separation.  As such, the governing Army regulation provides that this creates the presumption that she was fit.

   d.  The two memoranda the applicant provides from the clinician at the Transition Point and the WAMC PEB physician are both dated in 2012, two years after she should have transitioned to the USAR, and they refer back to September 2010.  If the applicant was not cleared at the time of her separation processing, the documents should have been prepared at that time stating that she should be retained for medical processing.  However, there are no such documents.

   e.  The advisory official concludes, "It is my opinion that [the applicant] was processed appropriately at the time of separation, despite the fact that she claimed she thought she was in a medical holdover status and continued to get paid while remaining at her residence in receipt of full military pay and allowances and not returning to her place of duty."

12.  The applicant was provided a copy of the advisory opinion to allow her the opportunity to submit comments or a rebuttal.  To date, she has failed to provide a response.

13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

   a.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).

   b.  Chapter 7 (Physical Profiling), paragraph 7-4b, provides that all permanent "3" and "4" profiles for Soldiers on active duty (emphasis added) will be reviewed by an MEB physician or physician approving authority.  An MEB physician is a military treatment facility dedicated, subject matter expert trained to perform disability evaluation per guidelines established in Department of Defense Instruction 1332.38 (Physical Disability Evaluation).

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.  The PDES is a performance-based system.  The mere presence of a condition does not constitute a physical disability.

   a.  Chapter 3 (Policies), paragraph 3-2b(2), provides when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.

   b.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

15.  Army Regulation 635-5 (Personnel Separations - Separation Documents) at the time prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

   a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Officer/Enlisted Record Brief (ORB/ERB), separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

   b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214, in pertinent part, as follows -

* item 2, enter in all capitals; compare ORB/ERB to contract/orders and enter (for officers) "RA," ARNGUS," or "USAR"
item 12, use extreme care in completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information

* block a, enter the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a
DD Form 214 was not previously issued
* block b, enter the Soldier's transition date

* item 21, signature indicates a Soldier has reviewed the form and
accepts the information as being correct to the best of their knowledge. When Soldier is not available (discharged in absentia or physically unable), enter "SOLDIER NOT AVAILABLE TO SIGN"

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge from the ARNG AGR Program should be rescinded and she should be referred to the PDES because she was informed that she was retained on active duty to continue medical treatment and referred to an MEB, but was retroactively separated from active duty approximately 18 months later without proper authority.

2.  Records show the applicant was ordered to active duty in an AGR status on 
5 June 2006 for an indefinite period (emphasis added).

   a.  On 26 May 2010, the applicant acknowledged she must be REFRAD from the AGR Program no later than 23 September 2010.  She accepted continuation on the RASL in the Ready Reserve.

   b.  On 25 June 2010, orders were issued releasing the applicant from active duty, effective 23 September 2010, not by reason of physical disability (emphasis added), and assigned her to the USAR Control Group (Reinforcement)
3.  There is no evidence of record that shows the applicant's REFRAD orders were revoked or rescinded.

   a.  The applicant provides no contemporaneous official documentary evidence to show that she was retained on active duty beyond her scheduled separation date of 23 September 2010 (emphasis added).

   b.  The applicant provides two memoranda, both dated more than 18 months after her scheduled separation date, that show she was seen on 24 September 2010 (emphasis added), but not cleared for separation processing due to ongoing medical concerns.  It is noted that the date she was seen was one day after her REFRAD.

   c.  The three Reports of Medical Examination that show Doctor Theodore L.
A----, Chief, PES, found the applicant "Not Qualified for Service – Not Fit for Duty" all were prepared after the date she was REFRAD.  In fact, the first one was prepared almost 1 year after she was REFRAD.

   d.  The Physical Profiles she provides all were prepared after the date she was REFRAD, they are inconsistent as to whether she did or did not require an MEB, and Doctor Theodore L. A---- indicated that he expected the applicant to be fully mission capable on 3 December 2013.

4.  The evidence of record shows the applicant's PULHES at the time she was being separated from active duty did not warrant a profile review or her referral to an MEB.  Thus, the evidence of record does not support her contention that she was medically unfit at the time of her scheduled separation processing.  In addition, there are no orders or other evidence that shows she was officially retained on active duty beyond her scheduled separation date.  Moreover, her DD Form 214 correctly shows her component, separation date, and that she was unavailable to sign the form on the date of separation.  The applicant is not entitled to correction of her records to show she was retained on active duty and referred to the PDES for MEB/PEB processing.

5.  The evidence of record shows that on 6 September 2011, the applicant provided DFAS officials copies of her USAR active duty orders and also her AGR orders that ordered her to active duty for an indefinite period.  However, there is no evidence of record that shows she provided DFAS officials a copy of the orders that REFRAD her from AGR status on 23 September 2010.  Thus, it appears that the applicant was not fully forthcoming in the information she provided DFAS officials and, as such, she was complicit in her continued erroneous receipt of active duty military pay.  Despite the evidence of record, at this time, no action is being taken to recoup any funds that may have been erroneously paid to the applicant during the period of service under review.

6.  In view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20130020880



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ABCMR Record of Proceedings (cont)                                         AR20130020880



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