IN THE CASE OF:	  

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140008311 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be paid the amount of money by which his active duty pay and allowances would have exceeded the Department of Veterans Affairs (VA) retirement benefits he received for the period commencing on 2 January 2009, the date he was released from active duty, and ending on 
20 June 2011, the effective date of his retirement.  

2.  Counsel states:

	a.  The applicant was released from active duty on 2 January 2009 and his pay and allowances were immediately terminated.  At the time of his release from active duty, he was continuing to receive treatment for injuries he suffered on active duty in Iraq.  In accordance with Department of Defense (DOD) Instruction (DODI) 1241.2 (Reserve Component Incapacitation System Management), dated 30 May 2001 and Title 10, U.S. Code (USC), section 1218(d), he should have continued to receive pay and allowances until he was retired for disability.  

	b.  The applicant served on active duty in Iraq from July 2006 to July 2007.  Following his return from Iraq he was in need of continuing care for multiple injuries.  He was assigned to the Warrior Transition Unit at Fort Carson, Colorado, where he received medical treatment.  Even though he was still in need of medical treatment, he was released from active duty on 2 January 2009 and told to report back to his unit.  He was subsequently determined by his unit commander to be unfit for duty as a result of the injuries suffered while on active duty in Iraq.  He underwent a medical evaluation board (MEB) and physical evaluation board (PEB) and was retired due to disability on 20 June 2011.  Nearly 2 and one-half years passed from the time he was released from active duty until he was finally retired due to disability.  

	c.  As provided in DODI 1241.2, sections 6.2 and 6.3, the applicant was entitled to full pay and allowances until he was retired.  His injuries precluded him from obtaining or maintaining any employment; therefore, he became totally dependent on VA retirement benefits he began to receive.   

	d.  The applicant's release from active duty was also contrary to Title 10, USC, section 1218(d), which explicitly requires members of the Reserve component who were injured while deployed to an area of imminent danger to receive a medical evaluation and remain on active duty during the evaluation process.  This provision was adopted by the National Defense Authorization Act (NDAA) in 2009 and took effect on 28 October 2009.  Thus, under the authority of this law, he should have been immediately restored to active duty and remained on active duty until his retirement due to disability in June 2011.

3.  Counsel provides:

* a memorandum in support of the applicant's request
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), dated 28 July 2010 (exhibits A-1 through A-6)
* a memorandum (Commander's Performance Statement), dated 28 July 2010 (exhibit A-7)
* DA Form 2a (Personnel Qualification Record – Part I), printed on 28 July 2010 (exhibits A-8 through A-9)
* National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement), dated 28 July 2010 (exhibits A-10 through A-11)
* a memorandum from the Fort Carson Medical Department Activity (MEDDAC), Fort Carson, Colorado, dated 12 November 2008 (exhibit A-12)
* DA Form 2173 (Statement of Medical Examination and Duty Status), with allied documents (exhibits A-13 through A-16)
* other memoranda and Line of Duty (LOD) documents (exhibits A-17 through A-36)
* a warranty card (exhibit A-37)
* other memoranda and LOD documents (exhibits A-38 through A-41)
* a copy of DODI 1241.2 (exhibit B-1 through B-12)
* a memorandum from the Nevada Army National Guard (NVARNG), dated 30 May 2013 (exhibit B-1)
* a timeline of events (exhibit B-2)
* Memoranda for Record (MFR) from the NVARNG, dated 28 May 2013 and 7 June 2013 (exhibit B-3 and B-4)
* a copy of Title 10, USC, section 1218 (exhibit B-5)
* email transmissions, dated 9 and 10 December 2013 (exhibits D-1 through D-2)
* a letter from the Defense Finance and Accounting Service (DFAS), dated 
17 April 2014 (exhibit 3)

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Following previous enlisted service, the applicant enlisted in the NVARNG on 15 February 2005.  He served in military occupational specialty (MOS) 63A (Abrams Tank Systems Maintainer) and attained the rank/grade of sergeant (SGT)/E-5.  His records show he entered active duty on 1 April 2005.

3.  His record contains a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the rating period February 2005 to January 2006 that shows: 

* he was assigned to D Troop, 1st Squadron, 221st Cavalry Regiment, Fort Irwin, California as a member of the NVARNG
* he passed the Army Physical Fitness Test (APFT) 
* his rater checked all "Success" blocks and indicated he was "Fully Capable"
* his senior rater checked "Success" and "Superior" blocks

4.  Orders Number 074-035, issued by Headquarters, 221st Cavalry Regiment, Fort Irwin, California (NVARNG), dated 15 March 2006, reassigned him from one position to another within his unit.  

5.  Orders Number A-05-611031, issued by the U.S. Army Human Resources Command (HRC), dated 5 May 2006, shows he was ordered to active duty in support of Operation Iraqi Freedom, with duty in Iraq.  

6.  His record contains an NCOER for the rating period 1 May 2006 to 30 April 2007 that shows:

* he was assigned to Battery A, 1st Battalion, 121st Field Artillery Regiment, Camp Navistar, Iraq
* he was on a profile and did not take the APFT 
* his rater checked all "Success" blocks and indicated he was "Fully Capable"
* his senior rater checked "Success" and "Superior" blocks

7.  His record contains an NCOER for the rating period 1 May 2007 to 
30 November 2007 that shows:

* he was assigned to Battery A, 1st Battalion, 121st Field Artillery Regiment, Camp Navistar, Iraq
* he did not take the APFT; however there is no indication he was on a profile 
* his rater checked all "Success" blocks and indicated he was "Fully Capable"
* his senior rater checked "Success" and "Superior" blocks

8.  Counsel provides a Standard Form (SF) 600 that shows he was examined at the Warrior Transition Clinic, Madigan Army Medical Center, Fort Lewis, Washington on 25 July 2007 and treated for lumbago.

9.  Counsel provides an SF 600 and a continuation page referring to neck pain that shows he was examined at the Warrior Transition Clinic, Madigan Army Medical Center, Fort Lewis, Washington on 14 August 2007.  He was released without limitations.

10.  Orders Number A-08-718316, issued by HRC, dated 28 August 2007, retained him on active duty to participate in the Reserve Component Medical Holdover Medical Retention Processing Program.  He was ordered to report to Headquarters, Warrior Transition Battalion, Fort Lewis, on 21 August 2007.  
11.  Counsel provides an LOD determination, issued by the Madigan Army Medical Center, Tacoma, Washington (Fort Lewis), on 29 August 2007, which shows the lumbosacral strain (low back strain) he was diagnosed with on 29 July 2006 was found to be in LOD.

12.  Counsel provides a DA Form 2173, dated 14 September 2007 and the corresponding LOD determination, issued by the Madigan Army Medical Center, Tacoma, Washington (Fort Lewis), on 14 September 2007, which show the carpal tunnel syndrome he was diagnosed with on 26 December 2006 was found to be in LOD.

13.  Orders Number A-10-720790, issued by HRC on 12 October 2007, retained him on active duty to participate in the Reserve Component Medical Holdover Medical Retention Processing Program.  He was assigned to Headquarters, Warrior Transition Battalion, Fort Carson, Colorado with a report date of            15 October 2007.   

14.  Orders Number A-08-718316R, issued by HRC, dated 12 October 2007, rescinded the unexecuted portion of Orders Number A-08-718316, issued by HRC, dated 28 August 2007.  

15.  Orders Number A-03-805781, issued by HRC on 28 March 2008, retained him on active duty to participate in the Reserve Component Medical Holdover Medical Retention Processing Program.  He was assigned to Headquarters, Warrior Transition Battalion, Fort Carson, Colorado with a report date of 
31 March 2008.  

16.  Orders Number A-10-720790R, issued by HRC, on 28 March 2008, rescinded the unexecuted portion of Orders Number A-10-720790, issued by HRC on 12 October 2007.

17.  Orders Number 120-611, issued by the NVARNG on 29 April 2008, released him from a position in Yerington, NV and transferred him to a new position in Las Vegas, Nevada effective 18 April 2008.

18.  Counsel provides an SF 600, dated 25 August 2008, showing he was examined at the Fort Carson MEDDAC, Fort Carson CO for hearing loss, tinnitus, and sleep apnea.  He was released without limitations.

19.  Counsel provided an SF 600, dated 17 September 2008, showing he was examined at the Fort Carson MEDDAC, Fort Carson CO for a hearing aid fitting.  

20.  Orders Number 311-004, issued by the 1st Mobilization Brigade, Fort Carson, Colorado on 6 November 2008, released him from his assignment to the 1st Mobilization Brigade, Fort Carson, Colorado and assigned him to D Troop, 1st Squadron, 221st Cavalry Regiment, Las Vegas, Nevada, effective 3 January 2009.

21.  Orders Number 317-001, issued by the 1st Mobilization Brigade, Fort Carson, Colorado on 12 November 2008, released him from active duty, not by reason of physical disability, effective 2 January 2009.  This order directed that he be assigned to Troop D, 1st Squadron, 221st Cavalry Regiment, Las Vegas, Nevada.

22.  Counsel provides seven DA Forms 2173 and the corresponding LOD determinations, issued by the Fort Carson MEDDAC, Fort Carson CO on            7 November and 12 November 2008.  These documents show the following conditions were found to be in LOD:

* post-traumatic stress disorder, diagnosed on 17 April 2008 
* left shoulder strain, diagnosed on 25 July 2008
* obstructive sleep apnea, diagnosed on 25 July 2008
* cervicalgia (neck pain), diagnosed on 25 July 2008
* left knee strain, diagnosed on 26 August 2008
* bilateral inguinal hernia (hernia in the groin/lower abdomen), diagnosed on 5 September 2008
* bilateral hearing loss, diagnosed on 7 October 2008

23.  The Interactive Web System (IWS)–Total Army Personnel Data Base (TAPDB) shows he received a physical on 7 November 2008.  However, his record does not contain and counsel has not provided a copy of that separation physical or any documentation that shows the applicant was on a permanent physical profile during his period of active duty.  There is also no evidence of record that indicates medical officials at the time felt the applicant had a condition that warranted entrance into the PDES.

24.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty by reason of completion of active service on 2 January 2009 and transferred to Troop D, 1st Squadron, 221st Cavalry Regiment, Las Vegas, Nevada.  Additionally, his DD Form 214 confirms he served in Iraq from 19 July 2006 to 17 July 2007.

25.  IWS-TAPDB contains a section entitled "major personnel actions."   This section shows the applicant's release from active duty for completion of required active service, on 2 January 2009, was voluntary.  
26.  Orders Number A-03-805781R, issued by HRC on 7 January 2009, rescinded the unexecuted portion of Orders Number A-03-805781, issued by HRC on 28 March 2008.

27.  Orders Number A-01-900916, issued by HRC on 8 January 2009, retained him on active duty to participate in the Reserve Component Medical Holdover Medical Retention Processing Program.  He was assigned to Headquarters, Warrior Transition Battalion, Fort Carson, Colorado with a report date of
1 October 2008 and an end date of 2 January 2009.  

28.  Orders Number 324-600, issued by the NVARNG on 20 November 2009, shows the applicant personally requested a transfer to the Inactive National Guard (ING).  As such, he was transferred to the ING and to a new duty position within the same unit, effective 20 November 2009.  

29.  IWS-TAPDB shows, on an unknown date in November 2009, the applicant was issued a physical profile indicating he had limitations with Kevlar and load bearing equipment (LBE).  His PULHES shows a 232211 rating factor, thereby indicating:

* P (Physical capacity or stamina) – 2 (no significant limitations)
* U (Upper extremities) – 3 (Significant Limitations)
* L (Lower extremities) – 2 
* H (Hearing and ears) – 2 
* E (Eyes) – 1 (no limitations)
* S (Psychiatric) – 1 

30.  Counsel provides a DA Form 7652 and memorandum/commanders performance statement, dated 28 July 2010.  The commander stated that the applicant was not currently serving in the unit or performing duties in his MOS because he was assigned to the ING, he was currently non-MOS qualified, and needed to reclassify into another MOS.  The commander further stated the applicant's medical conditions/limitations would affect unit mission accomplishment and he was unable to deploy.  

	a.  The commander did not recommend retaining the applicant and stated he felt the applicant should be medially discharged.  He further indicated the applicant's current referral to an MEB/PEB was based on the result of the evaluation by an MOS Medical Retention Board (MMRB).  The applicant's record does not contain an MMRB.


	b.  The commander also indicated on the DA Form 7652 that he had not personally observed the applicant working in his MOS because he was in the ING; therefore, the commander was unable to comment on the applicant's condition, work performance/duty performance, performance issues related to physical symptoms or the lack thereof, and/or social or work interactions, or whether or not the applicant had or was unable to establish and maintain effective work relationships with supervisors and/or co-workers.

	c.  The commander stated, in his memorandum/commanders performance statement, that as far as he knew, the applicant had multiple medical issues, his current medical condition had been on the decline for several years, and he had followed his treatment plan with minimal improvement.

31.  His record contains a memorandum of nonrated time dated 2 September 2010, showing he was not rated/evaluated during the rating period 15 April 2009 to 14 April 2010 because he was in the ING.  

32.  His record contains a memorandum of nonrated time dated 7 April 2011 showing he was not rated/evaluated during the rating period 15 April 2009 to    14 April 2010 because he was in the ING.

33.  His record contains a DD Form 199 (PEB Proceedings), dated 16 May 2011, which shows:

	a.  His condition of cervical disk fusion is not a battle injury and did not occur in a combat zone.  The neck pain has been of several years duration, during which he underwent a C5-C-6 diskectomy and fusion.  The symptoms have persisted despite therapy.  He has active forward flexion of 40 degrees.  The condition is unfitting as he cannot wear individual body armor (IBA), carry a combat load, or perform functional activities.  His condition is stable.  The PEB recommended a disability rating of 10 percent (%).

	b.  His condition of left knee condromalacia patella is not a battle injury and did not occur in a combat zone.  The MRI of his left knee was normal.  The applicant reported a consistent 4-5/10 pain that worsens with climbing or going down stairs.  Examination shows tenderness to palpitation along the joint line and with collateral ligament testing and flexion of 140 degrees.  The condition is unfitting as the applicant cannot run, jump, carry a combat load, or perform functional activities.  His condition is stable.  The PEB recommended a disability rating of 10%.


	c.  His condition of left shoulder clavicle extension was rated as degenerative arthritis.  This condition is not a battle injury and did not occur in a combat zone.  The applicant reported left shoulder pain of several years duration, with a prior history of clavicle resection.  Examination shows mild atrophy in the deltoid, tenderness over the glenohumeral joint, acromioclavicular and biceps tendon, and active flexion of 30 degrees.  The condition is unfitting as the applicant cannot wear IBA, carry a combat load, or perform functional activities.  His condition is stable.  The PEB recommended a disability rating of 10%.

	d.  The PEB found the applicant physically unfit and recommended a combined rating of 30% and that his disposition be permanent disability retirement.  

	e.  The applicant concurred with the PEBs findings and waived his right to a formal hearing.  

34.  Orders Number D 136-21, issued by the U.S. Army Physical Disability Agency (USAPDA) on 16 May 2011, ordered that he be placed on the retired list in the rank/grade of SGT/E-5, effective 20 June 2011, due to a permanent disability rating of 30%.

35.  Orders Number 172-604, issued by the NVARNG on 21 June 2011, honorably discharged him and transferred him to the Retired Reserve effective 20 June 2011.

36.  Counsel provided an MFR issued by the NVARNG, Deputy State Surgeon, on 28 May 2013, wherein the Deputy stated the applicant was ordered to the Warrior Transition Unit, Fort Carson, Colorado on 1 October 2008.  He was retained on active duty while completing medical care and treatment.  Upon his return from active duty, he was evaluated by NVARNG medical officials, issued a permanent profile on 8 February 2009, and recommended for an MEB.  A revision of his permanent profile was issued on 8 March 2009 with a second signature dated of 10 April 2009.  When the applicant was deemed medically stable his case was sent to the MEB.  A PEB found he had a permanent medical disability and he was medically retired effective 20 June 2011.

37.  Counsel provided a memorandum, issued by the NVARNG Assistant Judge Advocate, on 7 June 2013, wherein that official stated the applicant's claim for pay and allowances was reviewed for legal sufficiency and found to be legally sufficient with caveats.  


	a.  It is clear, that in applying the law (Title 10, USC, section 1218) to the facts, the applicant's release from active duty was premature.  Accordingly, the requested pay and allowances that exceeded the VA retirement benefits is reasonable.  However, additional points must be considered.  

	b.  Title 10, USC, section 1218 discusses the "Secretary of the military department."  The applicant's injury took place while on Title 10 orders and thus under the jurisdiction of the Secretary of the Army.  The 1st Mobilization Brigade was the Title 10 authority under the Secretary of the Army that should have retained the applicant.  

	c.  An additional caveat for consideration is whether the applicant earned wages during the subject period and whether such wages should be considered when determining an amount for payment.  The argument here is one of windfall.

38.  There is no evidence of record nor has counsel provided any evidence to show the applicant was, as a result of his injuries, unable to work, hold a job, or that he lost wages or income after his release from active duty.  

39.  Title 10, USC, section 1218 (Discharge or release from active duty: claims for compensation, pension, or hospitalization) states in subparagraph (d) that 
the Secretary of a military department shall [is required to] ensure that each member of a Reserve Component under the jurisdiction of the Secretary who is determined, after a mobilization and deployment to an area in which imminent danger pay is authorized under section 310 of title 37, to require evaluation for a physical or mental disability which could result in separation or retirement for disability under this chapter or placement on the temporary disability retired list or inactive status list under this chapter is retained on active duty during the disability evaluation process until such time as such member is cleared by appropriate authorities for continuation on active duty; or separated, retired, or placed on the temporary disability retired list or inactive status list.  

	a.  A Reserve component member may request termination of active duty under such paragraph at any time during the demobilization or disability evaluation process of such member.  Upon a Reserve component members request for termination of active duty during the demobilization or disability evaluation process, the Reserve component member shall only be released from active duty after the member receives counseling about the consequences of termination of active duty.  

	b.  Additionally, each release from active duty, of this nature, shall be thoroughly documented.  Furthermore, the requirements that the Secretaries ensure each Reserve member who is determined to require a physical or mental disability reaction which could result in separation or retirement for disability under this chapter or placement on the temporary disability retired list or inactive status list under this chapter be retained on active duty until such time as the Reserve member is cleared by appropriate authorities for continuation on active duty; or separated, retired, or placed on the temporary disability retired list or inactive status list shall expire on the date that is five years after the date of the enactment of the NDAA for Fiscal Year 2010.

40.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, HRC, is responsible for administering the Army PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB, receive a permanent physical profile rating of P3 or P4 and are referred by an MMRB; are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC.

	b.  The PDES assessment process involves two distinct stages – the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  

	c.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

41.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

42.  National Guard Regulation 600-200 (Separation/Discharge from State ARNG and/or Reserve of the Army) states commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier’s discharge.

43.  DODI 1241.2, section 6.2 (Pay and Allowances Entitlement) states a member of the Reserve component who incurs or aggravates an injury, illness, or disease in the line of duty is entitled to pay and allowances, and travel and transportation incident to medical and/or dental care, in accordance with Title 37, USC, sections 204 and 206, and DOD Financial Management Regulation (DOD FMR) 7000.14-R, Volume 7A (Military Pay Policy - Active Duty and Reserve Pay).  The amount of pay and allowance authorized for the member is determined in accordance with table 57- 3 of DOD FMR 7000.14-R, Volume 7A.

	a.  A Reserve Component member who is unable to perform military duties, as determined by the Secretary concerned, due to an injury, illness, or disease incurred or aggravated in the line of duty is entitled to full pay and allowances, including all incentive and special pays to which entitled, if otherwise eligible, less 
any earned income as provided under Title 37, USC, section 204 (g) and DOD FMR 7000.14-R, Volume 7A.  This has been commonly referred to as incapacitation pay.

	b.  A member authorized pay and allowances under Title 37, USC, section 204 (g) shall not be allowed to attend inactive duty training periods or to acquire retirement points for performing inactive duty training.  However, a member may earn retirement points in order to satisfy the requirements for a qualifying year of service by completing correspondence courses approved by the Secretary concerned.

	c.  A Reserve component member who is able to perform military duties, as determined by the Secretary concerned, but demonstrates a loss of earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty is entitled to pay and allowances, including all incentive and special pay to which entitled, if otherwise eligible, but not to exceed the amount of the demonstrated loss of earned income or the amount equal to total amount of pay and allowances authorized under Title 37, USC, sections 204 (g) or 204(h) and compensation under Title 37, USC, section 206(a) for a member who is entitled to such pay shall not exceed the amount of pay and allowances provided by law or regulation for a member of a Regular component of a Uniformed Service of corresponding grade and length of service for that period as provided in Title 37, USC, section 204(i), whichever is less.

	d.  The total amount of pay and allowances authorized under Title 37, USC, sections 204 (g) or 204(h) and compensation under Title 37, USC, section 206(a) for a member who is entitled to such pay shall not exceed the amount of pay and allowances provided by law or regulation for a member of a Regular component of a Uniformed Service of corresponding grade and length of service for that period as provided in Title 37, USC, section 204(i).

44.  DODI 1241.2, section 6.3 (Duration of Entitlements) states medical and dental care authorized under this Instruction shall be provided until the member is found fit for military duty, or the injury, illness, or disease cannot be materially improved by further hospitalization or treatment and the member has been separated or retired as the result of a (Disability Evaluation System (DES)) determination as provided in DODI 1332.18 (DES) and DODI 1332.38 (Physical Disability Evaluation).

	a.  Pay and allowances under this Instruction shall be paid only during the period a member remains not fit for military duty or demonstrates a loss of earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.  Payment in any particular case may not be made for more than 6 months without review of the case by the Secretary concerned to ensure that continuation of military pay and allowances is warranted under this Instruction, and to determine whether the member should be referred to the DES. Such a review shall be made every 6 months.

	b.  A member who remains not fit to perform military duty 1 year after the initial date when the injury, illness, or disease was first incurred or aggravated shall be referred to the DES if the member is not projected to be fit for duty within the next 6 months. 
 
	c.  In making the determination whether pay and allowances should continue beyond the initial 6 months, the Secretary concerned shall consider if the member has resumed his or her civilian occupation, undertaken a new position in the same occupation, or taken a position in a new occupation.  These factors are to help guide the Secretary in determining if it is in the interest of fairness and equity to continue benefits under Title 37, USC, section 204(h).

	d.  The member's entitlement to healthcare and pay and allowances under this Instruction shall terminate on the date that one of the following actions occurs:

		(1)  The member is found fit for duty, except in the case of a member covered under subparagraph 6.2.1.2.1., above.

		(2)  The member no longer demonstrates a loss of earned income in the case of a member covered under subparagraphs 6.2.1.2.1. (see paragraph 43c of the Record of Proceedings, above, unless subparagraph 6.3.3.3. (see paragraph 44d(3)) or 6.3.3.4.( (see paragraph 44d(4)), below, applies.

		(3)  The member is separated or retired.

		(4)  The Secretary concerned determines that it is no longer in the interest of fairness and equity to continue pay and allowances under Title 37, USC, sections. 204(g) or 204(h).

DISCUSSION AND CONCLUSIONS:

1.  Most, if not all of the applicant's medical records during his active duty service, with the exception of those provided by counsel, are not available for review with this case.  The record contains numerous LOD determinations, a sleep study, and three or four pages of medical records.  

2.  The applicant served in the NVARNG, entered active duty on 1 April 2005, and was deployed to Iraq from 19 July 2006 to 17 July 2007.  His record contains two NCOERs covering the rating periods 1 May 2006 to 30 April 2007 and 1 May to 30 November 2007 that show he successfully completed the duties required of his rank, grade and MOS.  

3.  Upon his return from Iraq, he was extended on active duty to receive maximum medical care for injuries he sustained during his service in Iraq.  His DD Form 214 shows he was ultimately honorably released from active duty, on 
2 January 2009, not by reasons of physical disability, and returned to his unit in the NVARNG.  
4.  Counsel contends the applicant should have been retired by reason of disability instead of released from active duty.  Counsel also contends that since the applicant was improperly released from active duty, he should have continued to receive pay and allowances until he was medically retired for disability.  However, the evidence is insufficient to show he should have been medically retired from active duty.  

5.  What happened upon his release for active duty and return to the ARNG is unclear as some information and evidence appears to be missing, some arguments are inconsistent, and other evidence is contradictory in nature.  For example:

	a.  His military records in IWS-TAPDB show he had a physical, presumably his separation physical, on 7 November 2008.  The fact that he had a physical indicates he was evaluated and found medically fit.  However, counsel did not provide his separation physical. 

	b.  IWS-TAPDB shows he was issued a physical profile with a PULHES rating of 232211 in November 2009 (the same month he voluntarily transferred to the ING).  However, in a memorandum, dated 28 May 2013, the NVARNG, Deputy State Surgeon stated NVARNG medical officials evaluated him upon his return to the ARNG and issued him a permanent profile on 8 February 2009; however, this profile was not provided.

	c.  Counsel stated the applicant was unable to work or maintain a job as a result of his disabilities, but he offers no proof of this statement.  This indicates counsel may have been attempting to build a case for incapacitation pay, yet he never specifically asks for such relief nor is there any evidence the applicant requested incapacitation pay after his release from active duty and prior to his medical retirement.

6.  Nevertheless, the applicant was issued a physical profile at some point between January 2009 and November 2009.  This profile contained a U-3 profile rating and prohibited him from wearing a Kevlar and LBE.  It is clear his commander in the NVARNG suspected he was not medically qualified for retention in the ARNG and directed he complete a full medical examination.  The evidence confirms he underwent an MEB and a PEB that ultimately resulted in a medical disability retirement from the ARNG.  

7.  There is no evidence in his service records and counsel provides insufficient evidence to show that at the time of his release from active duty the medical authorities at Fort Carson MEDDAC found him physically unfit to perform the duties require of his grade and MOS.  
	a.  A key element of the Army PDES is the Soldier's condition at the time of separation.  It is not intended to be a prediction of future medical ailments.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Referral to an MEB is warranted if there is a medical diagnosis of a disabling condition that prevents the Soldier from performing the duties required of their grade and MOS. 

	b.  At the time of his release from active duty, there is no evidence to show the applicant had a permanent physical profile or a diagnosis of a disabling condition that rendered him unable to perform the duties required of his grade or MOS.  

8.  There does not appear to be an error or an injustice in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20140008311



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ABCMR Record of Proceedings (cont)                                         AR20140008311



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