BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140007118 


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:

	a.  correction of her retirement date from 30 June 2011 to 30 December 2010;

	b.  removal of the flag from her Enlisted Record Brief (ERB) and Official Military Personnel File (OMPF);

	c.  removal of all actions pertaining to this situation from her restricted records; and

	d.  remission of the Defense Finance and Accounting Service (DFAS) debt due to the simultaneous payment of retired pay and active duty pay during her extension on active duty for medical evaluation.

2.  The applicant states:

	a.  An error in the medical system, retirement services, and several other agencies has caused her financial hardship, a delay in Department of Veterans Affairs (VA) disability benefits, and a permanent blemish on her OMPF.

	b.  She did everything to try to resolve the situation and this error left her in a status where she was not entitled to active duty pay or retired pay for 8 months and she was not entitled to pay in the Federal system for 2 months and 4 days.  She had to restart her application for VA disability which is still pending from July 2010 as a result of these errors that occurred in the medical system during her transition from active duty.

	c.  Her records are still flagged.

	d.  After serving honorably for over 26 years, she was flagged and investigated for a situation that no one can correct, but she was supposed to figure out how to correct this problem.  No one can figure out how to relieve the debts, but all agree that she should not have been recalled to active duty and entitled to retired pay at the same time.  Because she was never officially off of active duty, no one knows what should be done or what needs to be done.  She has exhausted assistance from various agencies and was finally told after 2 years that her records need to go before this Board because it is impossible to fix at the U.S. Army Human Resources Command (HRC) level.

	e.  She was recalled to Fort Polk for an investigation because of an error that occurred during her medical out-processing.  She was told she fell into a window for a new program that was a joint Department of Defense/VA Disability Evaluation System (DES) Pilot Program as a result of having an approved retirement and being referred for a medical evaluation board (MEB).  According to HRC, VA representatives at Fort Polk, and personnel for Baynes Jones Hospital, once she reached her approved retirement date, she would have the option to withdraw from the MEB and the DES Pilot Program would continue her compensation claim through the VA which was supposed to have been seamless.  The timeline seemed reasonable in August 2010 because her paperwork and appointments were made immediately through the VA and she rearranged some appointments to expedite the process.

	f.  Her health began to deteriorate significantly in 2009/2010 and she was given a permanent physical profile rating of 3.  She did not want to go through a medical board and she wanted her transition to go quickly because her unit was deploying and needed a command sergeant major to arrive before deployment.  She spoke with HRC, her command, and she processed her retirement.  She decided it was in the best interest to retire because the MEB would be non-productive and the approved retirement would stop the MEB process and allow them to backfill the unit faster according to HRC.

	g.  Her paperwork was processed and approved in approximately 2 days because she based her decision on "Soldiers separating from the Army for reasons other than a disability, whose careers have not been interrupted by a physical or mental disability, are usually not eligible for medical separation."  In this situation, the physical evaluation board (PEB) finds these Soldiers to be "fit by presumption."  The fitness by presumption rule prevents Soldiers who have continued to perform their duties until separation from receiving disability benefits.

	h.  After several months, the paperwork was finally submitted to an MEB which resulted in the board stating that she could not overcome the presumption of fitness rule and was not entitled to an MEB and should retire as soon as possible.  However, by this time, an investigation was initiated and she was flagged pending a determination that cleared her of any wrong doing.

	i.  After being called back to Fort Hood, it was discovered that she was retired and they could not remove the flag.  She would have to submit an appeal to HRC/DFAS to have her records corrected.  Since then, she has been going in circles.

3.  The applicant provides:

* service personnel records
* MEB/PEB proceedings
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 31 October 2010 and 30 June 2011
* DD Form 215 (Correction to DD Form 214) for the period ending 30 June 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 June 1984.  She was promoted to command sergeant major on 1 August 2005.

2.  The ERB, dated 30 March 2010, contained in the service folder of her OMPF in the interactive Personnel Electronic Records Management System (iPERMS) does not show she was flagged.

3.  In April 2010, the applicant's voluntary request for retirement effective 1 November 2010 was approved.

4.  Her records contain a DD Form 214, authenticated by the applicant on 16 July 2010, which shows she retired on 31 October 2010 after completing 26 years of creditable active service.

5.  In February 2011, the DD Form 214 for the period ending 31 October 2010 was revoked.

6.  Records show she was retained on active duty for medical reasons.

7.  In February 2011, an MEB diagnosed her with:

* right shoulder tendonitis
* degenerative cervical disc disease
* degenerative lumbar disc disease

8.  The MEB recommended referral of her case to a PEB.

9.  In April 2011, a PEB found her fit for duty based upon the presumption of fitness rule for voluntary retirement.

10.  In April 2011, an informal Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was initiated to investigate the circumstances surrounding her dual duty status as both a Department of the Army civilian employee and an active duty Soldier.  The investigation concluded the applicant did not wrongfully take or intend to permanently deprive or defraud the Federal government of pay to which she was not entitled.  She maintained monies received from the Federal government in anticipation of repayment.  The investigating officer recommended:

	a.  backdating her retirement date to 1 November 2010 and

	b.  requiring her to repay the money she received during this period of dual status to which she ultimately was not entitled by law.

11.  Her records contain a DD Form 214, authenticated on 30 June 2011, which shows she retired on 30 June 2011.

12.  Her DD Form 214 for the period ending 30 June 2011 shows in:

* item 12b (Separation Date This Period) – 30 June 2011
* item 12c (Net Active Service This Period) – 1 month and 28 days

13.  She provided a letter of support from the Commanding General, Headquarters, Joint Readiness Training Center and Fort Polk, dated 30 June 2011.  He supported remission of her debt in an amount equal to the amount of retired pay she would have incurred between the dates 1 November 2010 through 28 April 2011.

14.  She also provided a letter of support from the Commanding Officer, U.S. Army Medical Department Activity, Fort Polk, LA, dated 29 July 2011.  He supported partial remission of her debt.

15.  In October 2011, she was notified by DFAS that she was indebted to the Department of Defense in the amount of $35,593.39 as a result of overpayments before her recent separation.

16.  A DD Form 215, dated 16 May 2014, amended item 12c of her DD Form 214 for the period ending 30 June 2011 to show she completed 27 years and 17 days of net active service.

17.  The restricted folder of her OMPF in iPERMS contains only an evaluation report appeal.

18.  There is no documentation pertaining to a flag in her OMPF in iPERMS.

19.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, dated 9 February 2015.  The advisory official recommends changing the applicant's retirement date to 1 November 2010 and denying her request for remission of her debt.  The opinion states:

	a.  The comprehensive Army Regulation 15-6 investigation conducted at Fort Polk clearly shows a chain of events, mistakes, and omissions occurred during the applicant's active duty retirement and medical evaluation processing there.  These circumstances resulted in the applicant simultaneously receiving retired pay and active duty pay.  While the investigating officer determined there was no intent on the part of the applicant to defraud the government, she was aware that she was receiving both retired pay and active duty pay and indicated that she "maintained monies received from the Federal government in anticipation of repayment."

	b.  This office concurs with the Army Regulation 15-6 investigating officer's recommendations for changing the applicant's retirement date to 1 November 2010 and denying remission and/or cancellation of the debt that resulted in simultaneously receiving retired pay and active duty pay.

20.  A copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 11 February 2015, she responded and concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was initially retired on 31 October 2010.  However, her DD Form 214 for the period ending 31 October 2010 was revoked and she was retained on active duty for medical reasons.  A PEB found her fit for duty based upon the presumption of fitness rule for voluntary retirement.  As a result, she was retired on 30 June 2011.

2.  A comprehensive Army Regulation 15-6 investigation clearly shows a chain of events, mistakes, and omissions occurred during the applicant's active duty retirement and medical evaluation processing.  These circumstances resulted in the applicant simultaneously receiving retired pay and active duty pay.

3.  Although the applicant requests amendment of her retirement date to 30 December 2010, the Army Regulation 15-6 investigating officer and advisory official recommend amending her retirement date to 1 November 2010.  Based on these recommendations, it would be appropriate to amend items 12b and 12c of her DD Form 214 for the period ending 30 June 2011 to show she retired effective 1 November 2010 and that she completed 26 years, 4 months, and 17 days of total active service.

4.  Her request for removal of the flag from her ERB and OMPF was noted.  However, her ERB and OMPF do not contain a flag.  Therefore, there is no basis for granting this portion of request.

5.  She also requested removal of all actions pertaining to this situation from her restricted records.  However, the restricted folder of her OMPF in iPERMS contains only an evaluation report appeal.  Therefore, there is no basis for granting this portion of her request.

6.  The Army Regulation 15-6 investigating officer determined there was no intent on the part of the applicant to defraud the government and that she was aware she was receiving both retired pay and active duty pay and indicated she maintained monies received from the Federal government in anticipation of repayment.  In addition, she concurred with the advisory official's recommendation to deny remission and/or cancellation of her debt that resulted from simultaneously receiving retired pay and active duty pay.  Therefore, there is no basis upon which to remit this debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  __x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

	a.  voiding her DD Form 214 for the period ending 30 June 2011 and voiding the DD Form 215, dated 16 May 2014, amending this DD Form 214; and

	b.  issuing a new DD Form 214 for the period ending 31 October 2010 that shows the facts of her service as they existed on that date.

2.  The Board further determined 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:

	a.  changing her retirement date to 30 December 2010;

	b.  removing a flag from her ERB and OMPF;

	c.  removing all actions pertaining to this situation from her restricted records; and

	d.  remitting the DFAS debt due to the simultaneous payment of retired pay and active duty during her extension on active duty for medical evaluation.



      __________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)                                         AR20140007118



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ABCMR Record of Proceedings (cont)                                         AR20140007118



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