IN THE CASE OF:
BOARD DATE: 28 May 2015
DOCKET NUMBER: AR20140015638
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 he be restored to active duty for the period 1 October 2009 to 4 March 2014.
2. The applicant states, in effect:
a. After he received a medical profile he was released from active duty (REFRAD) while waiting for processing through the Integrated Disability Evaluation System. He was released from active duty until his medical retirement. His REFRAD was ordered by this command and was not caused by any actions he took, other than receiving the medical profile. This resulted in a loss of benefits for the period 1 October 2009 to 4 March 2014.
b. On 25 August 2009, the applicant's commander requested the applicant's reassignment to the Medical Processing Company, Warrior Transition Company, Arkansas, to continue receiving medical treatment and to be processed through a physical evaluation board (PEB). However, for no reasons provided, he was REFRAD until he received his medical retirement in 2014.
c. A memorandum from the Director of Manpower and Personnel, dated
3 February 2010, states the applicant elected to be transferred to the Retired Reserve in accordance with Army Regulation 140-10 (Army Reserve Assignments Attachments, Details, and Transfers), which is not true. He always requested a medical retirement and to continue on active duty until receipt of the retirement.
3. The applicant provides copies of:
* Company B, 1st Battalion, 138th Infantry Regiment memorandum: Subject: Commander's Statement, dated 25 August 2009
* A Joint Force Headquarters, Ike Shelton Site, memorandum, Subject: Medical Separation, dated 3 February 2010
* A U.S. Army Physical Disability Agency (USAPDA) memorandum: Subject: Permanent Physical Disability, dated 28 January 2014
* Orders 028-45, USAPDA, dated 28 January 2014
CONSIDERATION OF EVIDENCE:
1. The applicant is a retired Army National Guard (ARNG) sergeant first class (SFC).
2. From 22 January 2007 to 30 September 2009 the applicant was on active duty for special work (ADSW). A Missouri ARNG (MOARNG) memorandum, Subject: Commander's Statement, dated 25 August 2009, the applicant's commander requested his reassignment to the Medical Processing Company Warrior Transition Company, Arkansas, so he could continue on-going medical treatment he was receiving from local doctors and hospitals.
3. He was honorably REFRAD on 30 September 2009. He had completed
2 years and 8 months of active duty service during the period covered by the
DD Form 214. His DD Form 214 shows in:
a. Item 25 (Type of Separation) shows "Self Terminating Orders; and
b. Item 28 (Narrative Reason for Separation) Completion of ADSW.
4. In a Joint Force Headquarters, MOARNG memorandum, Subject: Medical Separation, dated 3 February 2010, the Director of Manpower and Personnel reveals:
a. The State Surgeon General determined the applicant did not meet the retention standards in Army Regulation 40-501, chapter 3.
b. The applicant did not appeal the decision.
c. He elected to be transferred to the Retired Reserve in accordance with Army Regulation 140-10.
d. He qualified for issuance of a 15-year letter for retirement purposes in accordance with Public Law 103-337.
e. The applicant's unit was advised that he should be processed for medical separation immediately.
5. U.S. Army Human Resources orders show he was ordered to active duty on 17 March 2012 and on 11 April 2012 for the purpose of completing medical evaluation board (MEB) appointments.
6. Informal PEB Proceedings, dated 7 January 2014, found the applicant physically unfit, recommended a rating of 90%, and that his disposition be permanent disability retirement. The applicant concurred with the recommendations and waived a formal hearing of his case.
7. An USAPDA memorandum, Subject: Permanent Physical Disability Retirement, dated 28 January 2014, shows the applicant would be permanently retired with a disability rating of 90%.
8. Orders D 028-45, USAPDA, dated 28 January 2014, announced the applicant's retirement due to permanent physical disability, effective 4 March 2014, with a rating of 90%.
9. An NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows the applicant was placed on the permanent disability retired list effective 3 March 2014 in the rank of SFC.
10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be restored to active duty for the period
1 October 2009 to 4 March 2014.
2. The available evidence shows he was REFRAD on 30 September 2009 because he had completed his ADSW.
3. He claims he never requested to be REFRAD and transferred to the Retired Reserve as is indicated in the 3 February 2010 memorandum from the Director of Manpower and Personnel, Joint Force Headquarters, Missouri ARNG.
4. Although there is no available record of his request to be transferred to the Retired Reserve, the available evidence indicates he did elect to be transferred to the Retired Reserve after it was determined he did not meet the retention standards in Army Regulation 40-501.
5. The regulation governing the Board's operation begins with the presumption that the separation process was conducted in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.
6. In view of the above, the applicant's request should be denied.
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) AR20110000082
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140015638
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