IN THE CASE OF:	  

		BOARD DATE:	  14 January 2015

		DOCKET NUMBER:  AR20140006782 


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, correction of her military service records to show that her medical records were referred to a Physical Evaluation Board (PEB) and, if more advantageous, recalculation of her retired pay based on the disqualifying disabilities; conversion of 48 days of annual leave to convalescent leave and payment for the 48 days annual leave balance as of the date of retirement; and payment for several travel claims that remain unliquidated.

2.  The applicant defers to her counsel.

3.  The applicant provides no documents in support of her request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military service records as stated by the applicant, above.

2.  Counsel states the applicant, an Active Guard Reserve (AGR) Soldier, was severely injured in an automobile accident while driving to her duty station in the early morning hours of 23 November 2010.

   a.  A car that was behind her car crashed into the rear of her car.  She was treated at the scene and transported to Maricopa County Medical Center where she received further treatment for neck and back pain.  She was released that same day.

   b.  Neither her treating physician nor her neurologist authorized her to return to work during the period 23 November 2010 and 31 January 2011.  She was placed on convalescent leave while she was being treated during this period.  The paperwork was initiated, but it was not properly processed by her supervisor.  In addition, her supervisor failed to provide the applicant information he had obtained from the State Surgeon concerning the conditions under which convalescent leave could be granted.  On 31 January 2011, her second-line supervisor required her to submit a request for ordinary leave to cover the period 29 November 2010 to 31 January 2011.

   c.  On 1 April 2011, the State Surgeon retroactively placed the applicant on 14 days convalescent leave for the period 29 November to 12 December 2010.  This action reinstated 14 days of her annual leave.  Her supervisor required her to either report to work or take annual leave for her time off; however, her treating physicians had not released her to work.  Consequently, her duty status should be changed from annual leave to convalescent leave with reinstatement of 
48 days of annual leave.

   d.  The applicant suffered from severe headaches, profound stuttering, and significant memory problems related to her head injury from the automobile accident, along with numerous other conditions.  She could no longer perform her duties and opted to submit her application for retirement with an effective date of 31 July 2011.

   e.  Her case was not referred to the Physical Disability Evaluation System (PDES) and the applicant does not know if the command initiated a Line of Duty (LD) investigation or made an LD determination.

   f.  After her release from active duty (REFRAD), she filed a disability claim with the Department of Veterans Affairs (VA).  Effective 1 August 2013, she was awarded a 100 percent (%) disability rating based on 17 different disabilities.

   g.  Had the applicant been processed through the PDES she would have been awarded a disability retirement equal to 70% of her base pay.  This is a substantially greater amount than the rate of retired pay she is entitled to and receiving based on her retirement for sufficient qualifying service.

   h.  The applicant was required to make several trips from her residence to Fort Huachuca, AZ, to accomplish her out-processing.  She submitted travel vouchers, but she has not been paid for the travel.

   i.  Counsel concludes by stating the applicant's unit did not follow proper procedures with regard to the applicant's medical processing for unfitting conditions and, as a result, her rights and benefits were not protected.

3.  Counsel provides numerous documents that he summarizes in his brief and identifies as Exhibits 1 through 26.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable active duty enlisted service in the U.S. Air Force from 20 February 1980 through 19 September 1984 and in the U.S. Marine Corps from 11 December 1985 through 7 December 1992.

2.  She had a break in military service from 7 December 1995 through 24 April 1997.

3.  The applicant enlisted in the Army National Guard (ARNG) of the United States (ARNGUS) and Ohio ARNG on 25 April 1997.  She was awarded military occupational specialty (MOS) 42A (Human Resource (HR) Specialist).

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she entered active duty on 23 February 2004 and was promoted to the rank of staff sergeant/pay grade E-6 on 22 April 2005.  She completed the HR Specialist Course and Basic Noncommissioned Officer Course.  On 2 October 2008, she was honorably discharged from the ARNGUS to accept an appointment as a warrant officer.

5.  On 3 October 2008, she was appointed as warrant officer one/pay grade W-1 in MOS 42A (Military Personnel Technician) and ordered to active duty in an AGR status.  She completed the HR Warrant Officer Basic Course on 30 October 2009.  On 30 November 2009, she requested transfer to the Arizona ARNG (AZARNG).

6.  On 16 December 2009, she was ordered to active duty in an AGR status with the AZARNG.  She was promoted to chief warrant officer two (CW2)/pay grade W-2 on 15 October 2010.

7.  A DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 
3 October 2008 through 30 November 2010 shows the applicant's principal duty title was HR Technician (MOS 420A).  The rater evaluated her performance and potential as "Satisfactory Performance, Promote."  The senior rater evaluated her promotion potential to the next higher grade as "Fully Qualified."  A review of the OER failed to reveal any evidence that she was not physically capable of continued performance of duty commensurate with her rank or grade.

8.  She was awarded the Meritorious Service Medal for exceptionally meritorious service during the period 4 January 2010 to 30 July 2011.

9.  Joint Force Headquarters – Arizona, Phoenix, AZ, Order 116-604, dated 
26 April 2011, reassigned the applicant to the U.S. Army Transition Point, Fort Huachuca, AZ, for separation processing with a reporting date of 16 June 2011.  The orders show she was instructed to complete a DD Form 2697 (Report of Medical Assessment) at her community/primary care clinic.

10.  On 27 June 2011, the examining physician initiated a DD Form 2808 (Report of Medical Examination) to document the applicant's separation physical.  Item 77 (Summary of Defects and Diagnoses) shows numerous entries pertaining to her medical conditions.  Item 74a (Examinee/Applicant) shows the examining physician found the applicant qualified for service/retirement.  The applicant's separation physical was reviewed and approved on 14 July 2011.

11.  A DD Form 214 shows the applicant was separated from active duty and from the ARNGUS effective 31 July 2011 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  It also shows the applicant and Retirement Services Officer digitally signed the DD Form 214 on 17 June 2011.

12.  A review of the applicant's military service records failed to reveal a copy of an LD investigation pertaining to injuries she sustained on 23 November 2010 as a result of an automobile accident.  This review also failed to reveal any evidence that she was referred to the PDES for evaluation of any unfitting conditions.

13.  In support of the application counsel provides the following documents:

   a.  Joint Force Headquarters – Arizona, Phoenix, AZ, Orders 334-627, dated 30 November 2009, that ordered the applicant to full time active duty in the AZARNG under Title 32, U.S. Code, section 502(f), as an AGR program Soldier with a reporting date of 16 December 2009.

   b.  Arizona Crash Report that shows at 0643 hours on 23 November 2010, the applicant (while on her way to work) was involved in a serious motor vehicle accident.  She was treated at the scene and transported to Maricopa County Medical Center where she received treatment for neck and back pain.  She was released that same day.

   c.  A physician's note, dated 5 January 2011, that shows Dr. Farrukh Q------, the neurologist treating the applicant, advised her (on 23 December 2010) to refrain from work for two months.

   d.  Certificate to Return to Work/School, dated 24 January 2011, that shows Dr. Kurt H. S------ certified the applicant had been under his care since 
24 November 2010; she was diagnosed with post-concussion syndrome and cervical and lumbar strain; and she was being treated with physical therapy.  He also noted she was under the care of a neurologist, Dr. Farrukh Q------.

   e.  Three DA Forms 31 (Request and Authority for Leave), all dated 7 January 2011, that show the applicant requested convalescent leave and her supervisor signed the requests as the approving authority for the following periods –

* 24 November 2010 to 16 December 2010
* 17 December 2010 to 2 January 2011
* 3 January 2011 to 2 March 2011

   f.  An undated document that shows Lieutenant Colonel (LTC) Douglas W.
L-----, Medical Corps (MC), the State Surgeon, sent a note (apparently to the applicant's supervisor) that indicated the conditions under which convalescent leave could be granted.  (Note:  A review of the document, that appears to be a "cut-and-paste" from an email message, states, "Hi Chief, That sounds terrific.  Just so she is clear, the civilian doctor's recommendation is just that, a recommendation – based on the information that is submitted, I am then tasked with profiling her accordingly and setting the necessary work environment that will not put her at risk for further injury.  Also, I need to emphasize, a civilian doctor's handwritten note (as was previously submitted) is inadequate and does not constitute the necessary medical documentation.  They [sic] must be supporting objective medical evidence to give any soldier a medical absence or profile.  Please be aware that for her to go beyond 60 days of convalescent leave (start date 24 November 2010) will require her case being reviewed and approved by the National Guard Bureau (NGB) Surgeon.  Her treating physician will need to specify what her diagnoses are, and what specific physical limitations she has that would prevent her from working/requiring a profile – this is the same that is done for Workman's Compensation cases.")

   g.  A DA Form 31, dated 31 January 2011, that shows the applicant requested annual leave from 29 November 2010 to 30 January 2011, her supervisor recommended approval, and LTC Leonard D---, Deputy Chief of Staff, G-1, approved the request for leave.

   h.  A DA Form 3349 (Physical Profile), dated 1 February 2011, that shows the applicant was issued a temporary profile by Dr. Douglas W. L----- that authorized "desk work only" with an expiration date of 3 March 2011.  The temporary profile was based on cervical and lumbar spine strain relating to a motor vehicle accident on 23 November 2010.

   i.  A DA Form 31, dated 1 April 2011, that shows the applicant requested convalescent leave from 29 November 2010 to 12 December 2010 and Dr. (LTC) Douglas W. L-----, State Surgeon, approved the request for convalescent leave.  The entry in item 17 (Remarks) states, "This request is to credit the Soldier with 14 days of ordinary leave previously taken."

   j.  VA Form 21-4138 (Statement in Support of Claim), dated 17 May 2011, that shows the applicant submitted a claim related to injuries resulting from the motor vehicle accident.

   k.  DD Form 2808, dated 27 June 2011, that shows the applicant underwent a separation physical examination.  It shows notations concerning her motor vehicle accident.  Item 74a shows the examining physician found her acceptable for service/retirement.  The examination was approved on 14 July 2011.

   l.  VA Rating Decision, dated 30 August 2011, that shows the applicant was granted a service-connected disability evaluated at 10% disabling for right shoulder injury and entitlement to an evaluation for vocational rehabilitation under Title 38, U.S. Code, chapter 31 (38 USC 31).

   m.  DD Form 214 that shows the applicant was honorably separated on 
31 July 2011 and transferred to the USAR Control Group (Retired).

   n.  Travel documents, as follows:

    	(1)  five DD Forms 1610 (Requests and Authorization for TDY Travel of DOD Personnel), all with a Date of Request of 1 June 2012; Date of Issue of 
16 July 2012; and Travel Authorization Number:  "LMFtHuachuca A042012-A01."
The forms were issued for the applicant's travel by privately owned vehicle (POV) from her home of record (HOR) in Maricopa, AZ, to Fort Huachuca, AZ, to accomplish separation processing, as follows –

* 7 June 2011 – 1 day (retirement physical)
* 15 June 2011 – 3 days (dental and out-processing)
* 27 June 2011 – 1 day (retirement physical)

* 8 July 2011 – 1 day (retirement physical and Army Career Alumni Program (ACAP) briefing
* 25 July 2011 – 1 day (final out-processing)

    	(2)  five DD Forms 1351-2 (Travel Vouchers or Subvouchers), all dated 
16 July 2012, with supporting documents that show the applicant claimed reimbursement for travel by POV from her HOR to Fort Huachuca, AZ, and return to her HOR (each trip a total of 330 miles roundtrip), as follows –

* 7 June 2011
* 15 to 17 June 2011 (with lodging cost of $110.00)
* 27 June 2011
* 8 July 2011
* 25 July 2011

   o.  VA Rating Decision, dated 10 September 2013, that shows the applicant was granted service-connected disabilities with a combined rating of 
100% disabling and evaluated, as follows:

* post-traumatic stress disorder (PTSD) with depressive disorder, cognitive disorder, and traumatic brain injury (TBI) – 70%
* migraine headaches – 50%
* radiculopathy, right arm – 50%
* radiculopathy, left arm – 40%
* radiculopathy, right lower – 40%
* radiculopathy, left lower – 40%
* degenerative joint disc disease (DJD), cervical spine – 20%
* degenerative disc disease, lumbar – 20%
* right shoulder rotator cuff (SLAP) tear with tendonitis – 10%
* internal derangement with DJD, right knee – 10%
* right ankle strain with Achilles tendonitis – 10%
* metatarsalgia with cyst, left foot – 10%
* speech impediment (claimed secondary to TBI) – 0%
* scar, status-post right shoulder SLAP surgery – 0%
* right wrist fracture with numbness – 0%
* scar, right wrist – 0%
* plantar fasciitis, right foot – 0%


   p.  four VA Compensation and Pension Examination Reports, as follows –

* based on a screening examination for all body systems, dated 
26 March 2012
* based on residuals of TBI, dated 29 March 2012
* based on PTSD, dated 27 February 2012
* based on neck (cervical spine) conditions, dated 27 March 2010

14.  Counsel cites the provisions of Army regulations, as follows –

* Army Regulation 40-400 (Patient Administration), paragraph 7-1, requires physicians who identify Soldiers with medical conditions not meeting fitness standards for retention to refer them to the PDES
* 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

* Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) –

* paragraph 3-1, notes chapter 3 identifies various medical conditions and physical defects which may render a Soldier unfit for further military service
* paragraph 3-4, indicates physicians are responsible for referring Soldiers with conditions listed in chapter 3 to a Medical Evaluation Board (MEB)
* paragraph 3-30, "Neurological disorders" notes the causes for referral to an MEB are –

* Migraine, tension, or cluster headaches, when manifested by frequent incapacitating attacks
* Any other neurologic conditions, TBI or other etiology when after adequate treatment there remains residual symptoms and impairments

* Chapter 8 (Medical Examinations–Administrative Procedures) –

* paragraph 8-24d, indicates Soldiers retiring from Active Duty or AGR duty are required to undergo a medical examination prior to retirement.  This examination may be combined with a Department of Defense (DOD)/Department of VA physical examination
* paragraph 8-24e, states that active duty and AGR Soldiers who have indicated on a DD Form 2697 they intend to seek VA disability compensation or who have been referred to the Army PDES for determination of fitness will be given a standard VA compensation and pension physical, in conjunction with the combined DOD/VA physical examination.  A complete review of systems that document the individual's physical condition at the time of retirement from the military service shall also be conducted as part of the physical examination to minimize duplication

* Army Regulation 600-8-4 (LD Policy, Procedures, and Investigations), Chapter 2 (LD Determinations) –

* paragraph 2-1, establishes LD determinations are essential for protecting the interest of both the individual concerned and the government where service is interrupted by injury, disease, or death
* paragraph 2-2, indicates reasons for conducting an LD investigation include disability retirement and severance pay as well as benefits administered by the VA
* paragraph 20-3, discusses the requirements for an LD investigation and requires an LD investigation in all cases of death or injuries (except slight injuries with no lasting significance).  The only exceptions are cases in which "LD – Yes" is presumed without investigation; none of which apply in this case

* Army Regulation 600-8-10 (Leaves and Passes), Chapter 5 (Nonchargeable Leaves and Absences) –

* paragraph 5-3c, authorizes unit commanders to grant up to 30 days of convalescent leave during one continuous period to Soldiers who have been returned to duty after illness or injury (See also paragraph 5-7a)
* paragraph 5-3e, authorizes hospital commanders the authority to approve requests for convalescent leave in excess of 30 days

* Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) –

* Chapter 1 (Introduction), paragraph 1-1, describes the purpose of the regulation establishing the Army PDES, the procedures for determining the unfitness of a Soldier, and the procedures for processing unfit Soldiers for separation.  One of the stated objectives of the program is to provide benefits for eligible Soldiers whose military service is terminated because of a service –
connected disability.  It also provides for prompt disability processing
* Chapter 4 (Procedures) –

* paragraph 4-6, permits commanders of treating Military Treatment Facilities (MTF) to initiate action to evaluate the Soldier's physical ability to perform duties of their office, grade, rank or rating
* paragraph 4-8, requires commanders who believe a Soldier of their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability to refer the Soldier to the responsible MTF for evaluation

15.  Army Regulation 600-8-4 prescribes policies, procedures, and mandated tasks governing LD determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  Chapter 2, paragraph 2-2 (Reasons for conducting LD investigations) provides in:

   a.  subparagraph d, for Soldiers who sustain permanent disabilities while on active duty to be eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes.  Physical Evaluation Board (PEB) determinations are made independently and are not controlled by LD determinations.  However, entitlement to disability compensation may depend on those facts that have been officially recorded and are on file within the Department of the Army (DA).  This includes reports and investigations submitted in accordance with this regulation.

   b.  subparagraph f, in determining whether a veteran or his/her survivors or family members are eligible for certain benefits, the VA makes its own determinations with respect to an LD.  These determinations rest upon the evidence available.  Usually this consists of those facts that have been officially recorded and are on file within the DA, including reports and LD investigations submitted in accordance with the provisions of this regulation.  Statutes governing these benefits generally require that disabling injury or death be service-connected, which means the disability was incurred or aggravated in LD (38 USC 101).  The statutory criteria for making such determinations are in 38 USC 105.


   c.  paragraph 2-3, shows, in pertinent part, that the LD determination is presumed to be "LD YES" without an investigation.

16.  Army Regulation 600-8-10 prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  It establishes standards and provides an operational document in a logical sequence.  Chapter 5, paragraph 5-7 (Rules to grant convalescent leave when Soldiers return to unit after illness or injury), provides that unit commanders may grant up to a maximum of 30 days convalescent leave during one continuous period to Soldiers who have been returned to duty after illness or injury.  Prior to approval:

   a.  Obtain supporting recommendation from physician.

   b.  Verify what, if any, convalescent leave Soldier has had while assigned or attached to the hospital, only that portion is authorized which, when added to hospital-approved leave, will not exceed 30 days (or 42 days if the reason is
pregnancy and childbirth).

   c.  Require confirmation of attending physician's recommendation for convalescent leave from the hospital commander having administrative responsibility, if desirable.

17.  Army Regulation 40-400 prescribes policies and mandated tasks governing the management and administration of patients and includes statutory policies regarding medical care entitlements and managed care practices.  Chapter 7 (Military Personnel Physical Disability Processing), paragraph 7-1, requires physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the PDES.  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MOS)/Medical Retention Board (MMRB).  If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer.

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


   a.  Chapter 3, paragraph 3-1, shows that this chapter gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3–2.  These medical conditions and physical defects, individually or in combination, are those that:

    	(1)  Significantly limit or interfere with the Soldier's performance of their duties.

    	(2)  May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service.  This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special
treatments, or a requirement for frequent clinical monitoring.

    	(3)  May compromise the health or well-being of other Soldiers.

    	(4)  May prejudice the best interests of the Government if the individual were to remain in the military Service.

   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 an MTF-dedicated, subject matter expert trained to perform disability evaluation per guidelines in DoD Instruction 1332.38 (Physical Disability Evaluation).

19.  Army Regulation 635-40 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) provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, his/her continued performance of 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.  The presumption of fitness can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

20.  38 USC 1110 and 1131 permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were service connected and subsequently affect the individual's civilian employability.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend that the applicant's military service records should be corrected to show referral to a PEB and, based on unfitting conditions, recalculation of her retired pay, if more advantageous; credit and payment for an annual leave balance of 48 days based on the conversion of 
48 days of used annual leave to convalescent leave; and authorization and payment for five unliquidated travel claims.

2.  The evidence of record shows the applicant was in an AGR status with the AZARNG on 23 November 2010 when she was involved in a motor vehicle accident, injured, and treated for neck and back pain as a result of the accident.

   a.  There is no evidence of record that shows the applicant was hospitalized for her injuries or that she was granted convalescent leave by an authorized official (i.e., the commander or an authorized official of an MTF).
   
   b.  The evidence of record shows that one month later, on 23 December 2010, a civilian doctor advised her to refrain from work for two months. 

   c.  On 7 January 2011, the applicant submitted three requests for convalescent leave and her immediate supervisor signed the requests as the approving authority for the following periods –

* 24 November 2010 to 16 December 2010
* 17 December 2010 to 2 January 2011
* 3 January 2011 to 2 March 2011

   d.  On 24 January 2011, a doctor issued her a Certificate to Return to Work.

   e.  At some point during the above timeframe, the State Surgeon advised the applicant's supervisor of the conditions under which convalescent leave could be granted and that a civilian doctor could make a work-related recommendation based on the medical information they provide, but any physical profile would be issued by the State Surgeon.  It should be noted that the State Surgeon refers to the civilian doctor's handwritten note that was previously submitted and states it is inadequate and does not constitute the necessary medical documentation to authorize a physical profile or medical absence from work.  Thus, it is reasonable to conclude that the applicant's supervisor provided the information from the State Surgeon to her, as he was clearly attempting to obtain information necessary to establish her convalescent leave duty status.  Moreover, in view of counsel's assertion that there is no record this information was ever passed on to the applicant and she denies having received it, it should be noted that the applicant (through her counsel) provides (emphasis added) a "cut-and-paste" copy of the State Surgeon's email message in her application to this Board, which supports a conclusion that she was provided a copy of the message.

   f.  The evidence of record shows that unit commanders may grant up to a maximum of 30 days convalescent leave during one continuous period to Soldiers who have been returned to duty after illness or injury (emphasis added).  There is no evidence of record that shows the applicant was hospitalized or authorized a medical absence at any time during the period discussed above.

   g.  On 31 January 2011, the applicant requested ordinary leave from 
29 November 2010 to 30 January 2011 and it was approved by the Deputy Chief of Staff, G-1.

   h.  On 1 February 2011, the State Surgeon issued the applicant a temporary profile that authorized "desk work only" with an expiration date of 3 March 2011.  The temporary profile was based on cervical and lumbar spine strain relating to a motor vehicle accident on 23 November 2010.  As an HR Technician, this profile was not unusual.

   i.  On 1 April 2011, the applicant requested convalescent leave from 
29 November 2010 to 12 December 2010 and the State Surgeon approved the request for convalescent leave.  The State Surgeon also approved the request to credit the applicant with 14 days of ordinary leave previously taken.  Thus, it is reasonable to conclude that, if the applicant was eligible for and entitled to any additional period of convalescent leave, the State Surgeon would have taken action to credit the applicant with additional days (e.g., 48 days as requested in her application to this Board) at that time; however, he did not do so.

   j.  Therefore, based on the foregoing, the evidence of record does not support the applicant's claim for credit and payment of 48 days annual leave based on conversion of 48 days of used leave to an approved convalescent leave status.

3.  There is no evidence of record of an LD investigation relating to the incident and the applicant (through counsel) denies knowledge of an LD investigation/ determination relating to the incident.  However, an LD investigation/ determination is not the central issue in this case.  The evidence of record shows that the LD determination is presumed to be "LD YES" without an investigation.  There is no evidence of misconduct in this case.  Thus, it is presumed the applicant's injuries were in line of duty (ILOD).  However, an ILOD determination does not equate to a diagnosis of an unfitting medical condition.

4.  On 26 April 2011, orders were issued directing the applicant to report to Fort Huachuca, AZ, for separation processing on 16 June 2011.

   a.  On 1 June 2012, the applicant prepared five DD Forms 1610 to travel by POV from her HOR to Fort Huachuca, AZ (and return) to accomplish separation processing, as follows –

* 7 June 2011 – 1 day (retirement physical)
* 15 June 2011 – 3 days (dental and out-processing)
* 27 June 2011 – 1 day (retirement physical)
* 8 July 2011 – 1 day (retirement physical and ACAP briefing
* 25 July 2011 – 1 day (final out-processing)

   b.  She was issued her DD Form 214 on 17 June 2011.

   c.  The DD Forms 1610 were approved on 16 July 2012 (emphasis added) all with the same Travel Authorization Number.

   d.  On 16 July 2012, she submitted five DD Forms 1351-2 for reimbursement of travel expenses.  There is no evidence of record that she was paid for the authorized travel.
   e.  It is not clear why the applicant would have been issued her DD Form 214 on 17 June 2011 (emphasis added) when she had not yet completed her retirement physical, attended an ACAP briefing, or completed out-processing. Nonetheless, the documentation the applicant submits offers evidence that Army officials conducted and the applicant completed a retirement physical examination, which is the central issue to this case.

   f.  In view of the foregoing, despite the fact that records show the applicant was issued her final DD Form 214 on 17 June 2011, and despite the fact that four of the five travel requests were authorized/approved subsequent to the travel having been performed by the applicant, it would be appropriate as a matter of equity to authorize reimbursement of the applicant's travel in this instance.

5.  The evidence of record shows the applicant was issued a temporary profile that authorized "desk work only" from 1 February 2011 to 3 March 2011.

   a.  There is no evidence of record that she was issued another physical profile extending the period of her temporary restrictions.  Thus, it is reasonable to conclude she was returned to full duty effective 4 March 2011.

   b.  There is no evidence that shows she was unable to perform her duties, or that an acute grave illness or injury or other deterioration of physical condition occurred immediately prior to or coincident with her separation that rendered her unfit.  In fact, the evidence of record shows the applicant underwent a separation physical examination that was approved on 14 July 2011 (emphasis added) and it included a thorough review of her medical history and conditions.  The Report of Medical Examination shows the examining physician found the applicant qualified for service/retirement.  She retired from active service on 31 July 2011.

   c.  There is no evidence of record, and the applicant and her counsel fail to provide sufficient evidence, to show that the applicant's medical conditions were medically unfitting for retention under the provisions of  Army Regulation 40-501. 

   d.  Records show the applicant was separated from active service on 31 July 2011, not by reason of physical disability (emphasis added), and transferred to the USAR Control Group (Retired).  The evidence of record shows that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties.  The evidence of record fails to support a conclusion that she was unable to perform her duties.  Thus, there was no basis to refer the applicant to the PDES.

6.  Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  The VA on the other hand provides compensation for disabilities which it determines were service connected, including those that are detected after discharge, and which impair the individual's industrial or social functioning.

7.  Therefore, in view of all of the foregoing, it is concluded that the applicant's records should be corrected, as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing authorization for reimbursement of expenses for travel by privately owned vehicle from her home of record (Maricopa, Arizona) to Fort Huachuca, Arizona and return for the following periods:  1 day travel (each day) on 7 June 2011, 27 June 2011, 8 July 2011, and 25 July 2011, and 3 days travel (with reimbursement for lodging) during the period from 15 June to 17 June 2011.

2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination regarding the applicant's entitlement to reimbursement of expenses for the travel outlined above.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the referral to the Physical 




Disability Evaluation System and placement on the Permanent Disability Retired List, and the conversion of 48 days annual leave to 48 days convalescent leave.




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               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)                                         AR20140006782



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ABCMR Record of Proceedings (cont)                                         AR20140006782



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