IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017711 


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, the spouse of a deceased former service member (FSM), requests, in effect, Title 10 orders placing the FSM in an active duty status for the period 11 November 2010 to 23 January 2012, and all back pay and allowances due, plus the benefits the FSM would have been entitled to receive at the time of death.  

2.  The applicant states her spouse was mobilized with the Arizona Army National Guard (AZARNG) on Title 10 orders on 23 September 2009.  While on these orders, the FSM was diagnosed with cancer on 25 July 2010.  The AZARNG erroneously placed the FSM on incapacitation orders before his death thereby precluding many benefits his family normally would have received in an active duty, line of duty death.

3.  The applicant provides numerous pages of personal, administrative, and medical documentation in support of her claim. 

CONSIDERATION OF EVIDENCE:

1.  Orders 224-176, issued by Joint Force Headquarters - Arizona, dated
12 August 2009, mobilized the FSM in the rank/grade of sergeant first class/E-7 under Title 10 U.S. Code, effective 23 September 2009.

2.  The available evidence shows the FSM served in Iraq for the period 
19 November 2009 to 12 September 2010, in military occupational specialty 31B (Military Police).
3.  The applicant provides:

   a.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 December 2010, which noted the FSM had a history of myeloma; but he was in remission before deployment.  He began noticing increased weight loss and intense abdominal pain.  After returning from deployment and still on Title 10 orders, he attempted to receive treatment for smaller injuries when he was diagnosed with cancer.

   b.  A memorandum from the National Guard Bureau (NGB), dated                15 February 2011, approving a line of duty investigation pertaining to the FSM.  It notes the FSM's multiple myeloma and nasal plasmacytoma recurrence which occurred during Operation Iraqi Freedom was approved as "IN LINE OF DUTY-EPTS-SERVICE AGGRAVATION."
   
   c.  Certificate of Death, State of Arizona, which shows the FSM date of death as 23 January 2012.
   
   d.  A memorandum from the NGB, dated 21 February 2012, referencing an approval of a request for an extension of incapacitation pay beyond 6 months for the period 1 January to 23 January 2012.

4.  During the processing of this case, on 14 January 2015, an advisory opinion was obtained from the Chief, Personnel Policy Branch, NGB.  The advisory official recommended approval of the applicant's request and stated:

   a.  The FSM was mobilized to Iraq on Title 10 Order Number 224-176 and while still on these active duty orders he was diagnosed with cancer.  The FSM was released from active duty (REFRAD) and placed on non-duty incapacitation pay status.

   b.  On 12 August 2009, the FSM received Title 10 mobilization Order Number 224-176 with an effective date of 23 September 2009 for up to 400 days of active duty service.

   c.  On 16 September 2010, the FSM received REFRAD Order Number 
259-0055 with an effective date of 10 November 2010.

   d.  On 13 December 2010, the FSM received a DA Form 2173 that confirmed his diagnosis of cancer with an effective date of 25 July 2010 at 1307 hours.

   e.  On 19 January 2011, the FSM received a memorandum for medical opinion of in line of duty evaluation.
   f.  On 15 February 2011, the FSM received a memorandum of approval for in line of duty illness incurred while on active duty.

   g.  On 24 January 2012, the FSM's spouse received his death certificate with an effective date of 23 January 2012.

   h.  On 21 February 2012, AZARNG processed an extension memorandum for incapacitation pay for the period 1 through 23 January 2012.

   i.  On 23 February 2013, the AZARNG completed a DA Form 1300 (Report of Casualty) with an effective date of 23 January 2012.

   j.  The FSM's demobilization process should have placed him into a Warrior Transition Unit (WTU) instead of the AZARNG erroneously placing him in a non-duty status to receive incapacitation pay until his death.  Documents show that each time the AZARNG only requested incapacitation pay and the requests were approved.  Being in this status precluded his family from the many benefits that a Soldier normally receives while serving on active duty as well as becoming ill or injured in the line of duty.

   k.  Additionally, the AZARNG could have requested to retain the FSM through a Medical Retention Processing Packet.  Records show that neither the AZARNG nor the FSM made this request.

   l.  In order for approval of active duty vs. non-active duty status to be corrected, it is recommended that U.S. Army Human Resources Command (HRC), the approval authority, take the lead for creating orders to place the FSM in an active duty status from 11 November 2010 to 23 January 2012.  The NGB does not have the authority to publish Title 10 orders for any ARNG Soldier.
Additionally, it is recommended that once all necessary corrections are made, that the FSM's family receive all back pay and allowances plus benefits owed to the FSM at the time of his death in an active duty status.

   m.  The NGB Medical Administration Section reviewed this case on
12 November 2014, 5 December 2014, and 7 January 2015 and concurs with the findings and recommendations.  The AZARNG also concurs with this recommendation.

   n.  On 20 January 2015, 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.  She did not respond.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to place the FSM on Title 10 orders in an active duty status for the period 11 November 2010 to 23 January 2012, and entitlement to all back pay and allowances, plus benefits the FSM would have been entitled to at the time of his death has been carefully examined and found to have merit.  

2.  The available evidence shows the FSM's demobilization process should have placed him into a WTU instead of erroneously placing him in a non-duty status to receive incapacitation pay until his death.  Documents show that each time the AZARNG only requested incapacitation pay and the requests were approved.  Being in this status precluded his family from the many benefits that a Soldier normally receives while serving on active duty as well as becoming ill or injured in the line of duty.

3.  Therefore, in the interest of justice and equity, it is recommended that HRC, the approval authority, take the lead in creating orders to place the FSM in an active duty status from 11 November 2010 to 23 January 2012.  In addition, it is recommended that once all necessary corrections are made, that the FSM's family receive all back pay and allowances, plus benefits that would be owed to the FSM at the time of his death in an active duty status.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the FSM concerned be corrected by placing the FSM in an active duty status from 11 November 2010 to 23 January 2012.  Once all necessary corrections are made, the Defense 


Finance and Accounting Service should correct the FSM's pay records and ensure the FSM's family receives all back pay and allowances, plus benefits owed to the FSM at the time of his death in an active duty status.



      _______ _   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)                                         AR20140017711



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ABCMR Record of Proceedings (cont)                                         AR20140017711



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