IN THE CASE OF:    

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140015020 


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, in effect, requests correction of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was released from active duty (REFRAD) on 14 February 2013 vice 26 August 2011
* records to show he was returned to active duty for 1 year, 5 months, and 19 days, the amount of additional time he should have received medical treatment (from 27 August 2011 to 14 February 2013)
* records to show he went before a medical evaluation board (MEB) vice being REFRAD on 26 August 2011

2.  The applicant states, in effect:

	a.  His REFRAD date of 26 August 2011 should be changed to show he was retroactively returned to active duty until 14 February 2013, because he was not properly medically cleared for REFRAD.  When his unit realized he was being improperly released they attempted to halt it, but the request was denied due to administrative errors that his unit failed to correct.  A medical fitness review did not begin until September 2012 and did not conclude until 14 February 2013. 

	b.  He was serving as an officer in the Army National Guard (ARNG) when he deployed to Iraq in 2010 in support of Operation New Dawn.  In February 2011, he sustained a head injury that eventually resulted in him being medically evacuated from Iraq.  He was first sent to Germany and then to his home State of Hawaii (HI) where he was attached to the Warrior Transition Battalion (WTB), Tripler Army Medical Center (TAMC).  He was REFRAD on 26 August 2011. 

	c.  Per Department of the Army (DA) Warrior Transition Unit (WTU) Consolidated Guidance, paragraph 3-17, "Reserve Component (RC) Soldiers will remain assigned/attached to the WTU/CBWTU until their medical condition is resolved and they are eligible for REFRAD or they complete the Physical Disability Evaluation System (PDES) process."  He was not processed through the PDES so his REFRAD could only have been accomplished upon resolution of his medical condition.  His separation was not processed pursuant to Army Regulation 600-8-24 (Officer Transfers and Discharges); those provisions were not followed at all.  At the time of his REFRAD, his medical condition was not resolved.  

	d.  On 23 August 2011, his treating neurologist, Dr. CC, wrote in his medical records that "At this time, his headaches are poorly controlled and currently working on finding a good therapeutic regimen that can provide headache relief.  Will consider a trial of another headache prophylactic medication such as Topiramate.  If this medication combination with Botox injections doesn't provide good headache control, then may consider a medical board."  This statement makes clear that his treating specialist was of the opinion that his medical condition had not been resolved and might in fact require him to process through the PDES.  

	e.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-30, plainly lies out that a Soldier suffering from the conditions he had, headaches and traumatic brain injury (TBI), should be referred to an MEB if medicinal treatment fails to prove effective.  The regulation makes it clear that it is the neurologist who controls the process.  Furthermore, he was also diagnosed with degenerative disc disease (DDD), an ongoing problem that also has not been resolved.

	f.  He immediately brought the statement from Dr. CC to the attention of his battalion surgeon.  The surgeon agreed his (the applicant's) REFRAD was improper and told the WTU to cancel his REFRAD.  The WTU conceded the problem and attempted to halt the REFRAD process.  He cannot stress the point enough that the unit agreed the REFRAD was a mistake and attempted to halt it. However, Mr. AN, a WTU human resources specialist, waited until 2149 hours on 26 August 2011 to email the REFRAD cancellation request to the U.S. Army Human Resources Command (HRC). 


	g.  On 29 August 2011, 3 days after his REFRAD date, HRC responded that his medical retention processing (MRP) packet was considered incomplete and was returned without action because HRC would no longer accepted MRP packets without all the proper documents and signatures.  The response did not specify exactly what was missing but stated the unit point of contact was responsible for reviewing the packet for accuracy and signatures.

	h.  He spent many months after he was released in constant pain, with inadequate treatment from a highly-motivated but woefully overworked and backlogged Department of Veterans Affairs (VA).  He did not have access to any military support systems designed for injured service members and their families. His marriage fell apart in an emotionally traumatic divorce.  He was driven to the brink of suicide and held back only by the love of his now 11 year old daughter.

	i.  In September 2012, the California ARNG (CAARNG) notified him that he was medically non-deployable, a precursor to a possible medical board.  It was not until October 2012 that he was final able to begin receiving Botox injections that have shown some efficacy in controlling the pain and other symptoms, allowing him to be found fit for duty in February 2013.  This process which followed the process prescribed by Army regulations was not completed until 18 months after his improper REFRAD.  He continues to have back and neck problems due to his DDD.

	j.  The Army has refused all his requests to undue his REFRAD and instead he was directed to apply to the Army Board for Correction of Military Records (ABCMR).  Sadly, he is not the only service member to face such problems.  He is enclosing an Army Times article relating how a U.S. Marine Corps (USMC) Reserve officer was improperly REFRAD and eventually returned to active duty to complete an evaluation of his condition.  He is only asking for the same consideration the USMC officer received, even if his must be after the fact.

3.  The applicant provides:

* his DD Form 214 for the period ending 26 August 2011
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* four memoranda, dated between 5 August 2011 and 14 February 2013
* page 9 of a 9 page Standard Form (SF) 600 (Chronological Record of Medical Care)
* two pages of email
* REFRAD orders
* SF 513 (Consultation Sheet)
* one page of DA WTU Consolidated Guidance
* one page of Army Regulation 40-501
* four pages of an Army Times newspaper article titled New Disability System Fails to Speed Claims

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted ARNG service, the applicant was appointed as a first lieutenant in the HIARNG and he executed an oath of office on 17 January 2007.  He held primary specialty 27A (Judge Advocate General (JAG)).  He was promoted to the rank of captain (CPT) on 25 July 2008.

2.  He was ordered to active duty as a member of his ARNG unit in support of Operation New Dawn and he entered active duty on 1 October 2010.  He deployed to Iraq with his ARNG unit on 10 December 2010.  

3.  His medical records are not available for review with this case. 

4.  On 12 May 2011, he was assigned to the WTB, TAMC, HI.  He provides a DA Form 2173, dated 5 August 2011, wherein: 

   a.  It stated he was initially treated on 16 February 2011, at Landsthul Regional Medical Center (LRMC), Germany.  It shows he was diagnosed with adjustment disorder with anxiety and depressed mood, depression, and headache syndrome (emphasis added).  

   b.  In item 18 (Details of Accident or History of Disease) of the DA Form 2173, it stated "The service member stated during deployment to Iraq, he started feeling depressed and anxious.  He struck his head on a low door frame while walking quickly."  The injury/disorder was considered to be in the line of duty (LOD). 

5.  He provides an SF 600 from the Neurology Clinic, TAMC, dated 23 August 2011, wherein Dr CC stated, in part, the applicant was diagnosed with: 

	a.  chronic post-traumatic headaches with migrainous features exacerbated by lack of adequate sleep and co-morbid psychiatric disorder.  Neuro examination was unremarkable; Botox initially decreased headache frequency and severity of headaches.  At this time his headaches are poorly controlled; currently working on finding a good therapeutic regimen that can provide adequate headache relief.  Will consider a trial of another headache prophylactic medication.  If the medication in combination of Botox injection doesn't provide good headache control, then may consider a medical board.

	b.  Tingling, as reported by persistent paresthesias in the posterior neck region when both arms extended, mostly in the trapezius muscle bilateral.  Magnetic resonance imaging (MRI) of the neck was reviewed and any evidence of root compression was ruled out.  He should follow up at his next duty station to consider an electromyogram (EMG).

	c.  The clinical disposition was to continue current acute abortive therapy.  Continue current antiemetic regimen.  May begin a prophylactic agent; continue Botox injections; follow up with Neurology as needed.  This form does not state the applicant was not cleared to be REFRAD.  

6.  He provides an unsigned Memorandum for Record, dated 25 August 2011, wherein his primary care manager (PCM), Dr. RD, WTB Clinic, TAMC, stated the applicant's current diagnosis was chronic post-traumatic headache and degenerative cervical disk disease.  The estimated end of treatment date was not later than February 2012.  It also stated his prognosis was good and continued treatment was "trials of appropriate medication regimens that will provide adequate pain control and evaluation to determine fitness to REFRAD or retention."  This memorandum does not state the applicant was not cleared to be REFRAD.  

7.  He provides an email to HRC, dated 26 August 2011, wherein Mr. AN, TAMC, requested cancellation of the applicant's REFRAD due to his medical condition.  In an email response from HRC, dated 29 August 2011, the HRC official stated they received the MRP for the applicant on 29 August 2011; however, it was considered incomplete and returned without action.  

8.  Orders 241-0024, dated 29 August 2011, issued by U.S. Army Garrison - HI, REFRAD the applicant effective 26 August 2011 not by reason of physical disability to the control of his ARNG unit.

9.  The DD Form 214 he was issued for this period of service shows he was REFRAD on 26 August 2011 by reason of completion of required active service.  He completed 10 months of 26 days of creditable active service during this period.  

10.  This DD Form 214 shows he served in Iraq from 10 December 2010 to 16 April 2011.  As he provided evidence that shows he had stated he was treated at LRMC, Germany, on 16 February 2011, it is unclear if the dates of his service in Iraq are incorrect or if he returned to Iraq after being treated at LRMC.  It also shows he was in the Warriors in Transition MRP Program for evaluation of medical care and treatment from 12 May to 26 August 2011.

11.  There is no evidence in his record, and he did not provide any evidence, that shows during this period of his active duty service he was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB).  There is no evidence that shows he ever received a permanent (P) profile of 3 or 4 that would require referral to an MEB/PEB. 

12.  On 17 April 2012, based on his request for a transfer from the HIARNG, the applicant was appointed as a CPT in the CAARNG.  His record contains a Personnel Qualification Record (PQR), dated 17 April 2012, wherein it shows his last physical examination was on 1 December 2011 and his PULHES were 111111.

13.  In August 2012, he received an Officer Evaluation Report (OER) covering 8 months of rated time for the period 27 August 2011 through 16 April 2012 for duties as defense counsel.  His rater checked the "outstanding performance, must promote" block and his senior rater checked the "best qualified" block.  His rater, in part, stated absolutely outstanding performance by this dedicated and professional counsel; he handles his workload with exceptional professionalism and was very successful in defending his clients.  His senior rater, in part, stated the applicant was a tireless advocate who displayed keen analytical prowess and sound judgment; he excelled at every opportunity garnering numerous accolades for his technical skill, sound judgment, and dynamic leadership abilities.  

14.  He was ordered to active duty as a member of the CAARNG and he entered active duty on 15 June 2012.

15.  He provides a memorandum to himself, dated 21 September 2012, subject:  Notification of Medically Non-Deployable Status, from Joint Force Headquarters (JFH) CAARNG, wherein it stated, in part:

	a.  The State Surgeon determined that medical documentation was required before a medical determination could be completed.  If he was Active Guard Reserve (AGR) or any other form of active duty, he could go to a military medical facility for evaluation and/or treatment.  The attached SF 513 must be completed by his health care provider.  They would need to provide the diagnosis, prognosis, functional limitations, a list of any medications prescribed, copies of any tests, x-rays, MRI reports.

	b.  Since he was in the medical determination process he would be identified as medically non-deployable.  The restrictions would remain in effect until he was cleared by the State Surgeon.  He was to attend Inactive Duty Training (IDT) and annual training only.  No Active Duty Operational Support (ADOS) or active duty may be performed while he was in a medically non-deployable status.  This memorandum showed the suspense date was 21 November 2012.  

	c.  The SF 513, dated 20 September 2012, stated the applicant was an ARNG Soldier with a reported prior exposure to concussion; the provisional diagnosis was unspecified concussion.  Evaluate for suspected mild TBI and refer for further specialist evaluation/imaging study as clinically indicated.  Comment on diagnosis, prognosis, and treatment plan.  List any functional limitations on the attached sheet.  He did not provide the completed SF 513 to show the results of the medical evaluation.

16.  He attended and successfully completed the Judge Advocate Officer Advanced Course (JAOAC), Phase II, from 7 to 18 January 2013, given at The JAG Legal Center and School, Charlottesville, VA.   

17.  He provides a memorandum, dated 14 February 2013, from JFH, CAARNG, wherein it stated the CAARNG Surgeon completed a medical determination for his post-traumatic stress disorder (PTSD) and concussion and he was found to be fit for duty with no physical limitations.  

18.  In May 2013, he received an OER covering 12 months of rated time for the period 17 April 2012 through 16 April 2013 that he received for his duties as defense counsel.  His rater checked the "outstanding performance, must promote" block and his senior rater checked the "best qualified" block.  His rater, in part, stated [The Applicant] had another outstanding year.  He drafted several important motions regarding military justice issues which included a vitally important motion involving jurisdiction in California courts-martial.  He mentored less experienced attorneys and paralegals providing sage advice on how to approach difficult subjects.  He completed his officer education to include the JAOAC.  His senior rater, in part, stated the applicant had been an exceptional trial defense lawyer.  He was performing at the level of a major (MAJ), conducted independent and insightful legal research, and shared the research with others.  

19.  He was honorably released from active duty on 30 September 2013 by reason of completion of required active service to the control of the CAARNG.  He completed 1 year, 3 months, and 16 days of creditable active service this period.  On 28 October 2013, he was promoted to the rank of MAJ and is currently serving in the CAARNG. 



20.  The applicant provides:

	a.  One page of DA WTU Consolidated Guidance, dated 20 March 2009, wherein it states, in part, Reserve Component (RC) Soldiers will remain assigned/attached to the WTU until their medical condition is resolved and they are eligible for REFRAD or they complete the PDES process.

	b.  A newspaper article, dated 1 October 2012, wherein it stated the new disability system failed to speed claims.  A USMC MAJ was stuck in limbo because of the delays in the time it took to complete an MEB.  It stated, in part, that after being improperly released from medical hold in September 2011, he waged bureaucratic warfare to get a ruling on his reactive arthritis which developed in 2009 after he contracted an illness in Africa.  A Navy JAG ruled he should have been allowed to stay on active duty until a board declared whether he was too ill to serve.

21.  DA WTU Consolidated Guidance, dated 20 March 2009, also states, in part: 

	a.  The purpose of the MRP Program is to ensure RC Soldiers receive appropriate medical processing upon demobilization for wounds, injuries, or illness incurred or aggravated in the LOD.  RC Soldiers who must remain on active duty to determine if further medical care or evaluation is warranted may be retained on active duty with their consent and HRC approval.  The MRP evaluation is a short term order of not more than 30 days that extends a demobilizing Soldier on active duty to complete the medical evaluation processing.  The MRP is the first course of action to extend a Soldier on active duty.  If, following a medical evaluation, it is determined further medical treatment is required RC Soldiers may be assigned to the WTU.

	b.  WTU are designed to meet the needs of Soldiers who were wounded, ill or injured in theater and/or require complex medical care and case management through the triad of care.  ARNG Soldiers are eligible for assignment to the WTU for illness/injury incurred or aggravated in the LOD while serving on active duty. 

	c.  After initial evaluation and treatment plan have been completed at the WTU by a designated medical authority, determination is made by the WTU Commander where the Soldier will perform "duty at."  Decisions will be based primarily on medical necessity.  Soldiers shall be referred into the PDES as soon as the probability that they will be unable to return to full duty is ascertained and optimal medical treatment benefits have been attained.  All Soldiers shall be referred for evaluation within 1 year of the diagnosis if they are unable to return to military duty.  Delayed referral into the PDES is allowed for those with conditions that require more than 1 year to obtain optimum medical benefit.  
	d.  A Soldier is referred into the PDES system when:  (1) They no longer meet medical retentions standard in accordance with Army Regulation 40-501, chapter 3, as evidenced in a MEB; (2) Receive a permanent (P) 3 or P4 medical profile, and are referred by an MOS/Area of Concentration Medical Retention Board; (4) They are referred by the Commander, HRC.

	e.  Once medical care is complete, the WTU Commander requests a REFRAD order authorization from HRC.  Upon receipt of the request, HRC sends the REFRAD authorization back to the WTU of origin and to the garrison's transition center.  The transition center publishes the final REFRAD orders and the DD Form 214.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEB/PEB are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

23.  Army Regulation 635-40 further states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

24.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations.  A P3 or P4 profile would require referral to an MEB/PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been retained on active duty past his REFRAD date of 26 August 2011 and referred to an MEB.
2.  The evidence of record confirms the applicant was assigned to the WTB, TAMC, in May 2011 after serving in Iraq with his ARNG unit where he became depressed and anxious and where he struck his head and incurred a head injury. 

3.  The governing regulations state a Soldier will be referred into the PDES when they no longer meet medical retention standards, receive a P3 or P4 profile, or are diagnosed with a medical/mental that permanently renders them unfit to perform their military duties.  For a Soldier assigned to the WTU, once medical care is complete the WTU commander requests a REFRAD order authorization from HRC.  

4.  A DA Form 2173, dated 5 August 2011, shows he was diagnosed with an adjustment disorder with anxiety and depressed mood, depression, and headache syndrome.  He provides an SF 600, dated 23 August 2011, wherein a neurologist stated he was diagnosed with chronic post-traumatic headaches and tingling in the neck region.  The neurologist stated his headaches were poorly controlled at the time and would consider a trial of another headache medication in combination with Botox; he would need to follow up at his next duty station.  If the combination did not provide good headache control, then consider a medical board.

5.  Although he provides a memorandum from his PCM, dated 25 August 2011, wherein it stated his current diagnosis was chronic post-traumatic headache and degenerative cervical disk disease, his prognosis was good, and the estimated end of treatment was no later than February 2012, it appears he was found to be fit for REFRAD.  There is no evidence in his record, and he did not provide any evidence, that shows he was diagnosed with any mental/medical condition that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB/PEB.  There is no evidence that shows while he was assigned to the WTB, TAMC, that he ever received a P3 or P4 profile that would require referral to an MEB/PEB. 

6.  There is no evidence that shows he was unable to perform his military duties after his REFRAD on 26 August 2011.  His PQR, dated 17 April 2012, shows his last physical examination was 1 December 2011 and his PULHES were 11111.  The OER he received for the period 27 August 2011 through 16 April 2012 confirms he performed all of his military duties in an outstanding manner continuously from the date after his REFRAD to 16 April 2012.  

7.  While he may have been required to continue treatment for some of his medical issues, it appears he continued to be fit for duty as he entered active duty on 15 June 2012 as a member of the ARNG.  The OER he received for the period 17 April 2012 through 16 April 2013 confirms he performed all of his military duties in an outstanding manner during that period.

8.  Although he was found to be medically disqualified from deployment in September 2012 for a suspected TBI, he continued to serve on active duty and completed the JAOAC in January 2013.  It is presumed he was found fit for duty prior to 14 February 2013 as he was able to attend a military school and was prohibited from serving on active duty while in a medical non-deployable status.  In addition, there is no evidence that he was diagnosed with a TBI while assigned to the WTB, TAMC.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

10.  The applicant's contention that he was improperly REFRAD as was the USMC MAJ in the Army Times article is noted; however, there are not enough details to determine why the situation of each officer would be considered alike.

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.

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ABCMR Record of Proceedings (cont)                                         AR20140015020



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