IN THE CASE OF: BOARD DATE: 21 April 2009 DOCKET NUMBER: AR20080011090 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, in effect, that his records be corrected to show he remained on active duty until his placement on the Temporary Disability Retirement List (TDRL) on 8 August 2008 vice being released from active duty (REFRAD) on 24 December 2005. He also requests that he receive credit for time in grade for pay, promotion and retirement purposes, and back pay and allowances in the rank of specialist (SPC) from the date of his REFRAD until his placement on the TDRL in 2008. 2. In a supplemental statement submitted by Counsel, the applicant states, in effect, that on 27 September 2004, he was ordered to active duty in support of Operation Iraqi Freedom for a period of two years. He also states that during his period of active duty service he was injured in the line of duty and was placed on the TDRL with a 40 percent disability rating in August 2008. He states that the DD Form 214 (Certificate of Release or Discharge from Active Duty) he received upon his REFRAD inaccurately reflects that the reason for his separation was "completion of required active service" in Item 28 (Narrative Reason for Discharge) given he served for a period less than the two years reflected on his active duty orders. He further states that he believes he should have remained on active duty during his Physical Disability Evaluation System (PDES) processing and that he believes his being REFRAD while unfit is a violation of paragraph 3-7, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3. The applicant provides the following documents in support of his application: Supplemental Statement; DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 20 May 2008; DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 24 December 2005; State of Michigan, Department of Military and Veterans Affairs, Orders Number 271-095, dated 27 September 2004; Page 9 of Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), dated 27 December 2006; and Page 6 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 8 February 2006. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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. The applicant's record shows he enlisted in the Michigan Army National Guard (MIARNG) for a period of 8 years on 27 February 1987, and continuously served until being honorably discharged under the provisions of Paragraph 8-26, National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), by reason of expiration of service obligation on 26 February 1996. 3. On 13 September 2000, the applicant again enlisted in the MIARNG. 4. On 27 September 2004, Department of Military and Veterans Affairs, Lansing, Michigan, Orders Number 271-095, ordered the applicant to active duty as a member of his Reserve Component (RC) unit, for the period not to exceed 730 days unless sooner released (emphasis added) or unless extended in support of Operation Iraqi Freedom, with a reporting date of on or about 2 October 2004. 5. On 28 November 2005, a DA Form 2697 (Report of Medical Assessment) was completed on the applicant in conjunction with his REFRAD. In response to question 10 (Compared to my last medical assessment/physical examination, my overall health is) of the three choices available, "the same, better, worse," the applicant placed an "x" in "the same" block, indicating his condition had not changed since his last medical assessment in August 2003. 6. In response to question 15 (Do you have any conditions which currently limit your ability to work in your primary military specialty or require geographic or assignment limitations) of the DA Form 2697, the applicant placed an "x" in the "No" block, indicating he had no physical limitations. 7. In response to question 17 (Do you have any other questions or concerns about your health) of the DA Form 2697, the applicant placed an "x" in the "Yes" block. He also entered the comment "would like my lower back pain documented." 8. On 28 November 2005, the applicant completed a REFRAD Checklist, in which he acknowledged that he had been afforded the opportunity to have a post-deployment physical examination at Fort McCoy, Wisconsin, and that he declined. The applicant authenticated this document with his signature. 9. On 24 December 2005, the applicant was honorably REFRAD, in the rank of SPC, after completing 1 year, 2 months, and 23 days of active military service during the period. The DD Form 214 he was issued at that time shows he was REFRAD under the provisions of Chapter 4, Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), by reason of completion of required active service. It also shows that upon his REFRAD he was transferred to an MIARNG unit. 10. On 12 July 2006, the applicant completed a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment). This document shows the applicant extended his enlistment in the ARNG for 6 years with entitlement to an enlistment bonus in the amount of $15,000.00. 11 On 5 September 2007, a DA Form 261 (Report of Investigation Line of Duty and Misconduct Status) was completed on the applicant which determined his L-3 herniated disc and back pain were "In Line of Duty EPTS [Existed Prior to Service] Service Aggravation." 12. On 20 May 2008, a PEB was convened at Fort Lewis, Washington. This document shows the PEB found the applicant physically unfit and recommended a disability rating of 40 percent (%), 20% for lumbar spinal fusion, 20% for lower left extremity pain from L-5 radiculitis, and 10% for posttraumatic stress disorder. The PEB determined the applicant's disabilities rated at 40%, but were such that a permanent evaluation was not possible. Therefore, the PEB recommended the applicant's placement on the TDRL with reexamination during November 2009. 13. On 8 August 2008, the applicant was honorably discharged from the MIARNG under the provisions of paragraph 8-35(8), National Guard Regulation 600-200, by reason of medical unfitness for retention per Army Regulation 40-501 (Standards of Medical Fitness). 14. In connection with the processing of this case, an advisory opinion was requested of and received from the National Guard Bureau (NGB), Chief, Personnel Division. This official stated that at the time of the applicant's REFRAD he did not indicate there were any medical issues requiring immediate attention, as evidenced by the DA Form 2697 he completed upon his separation processing on 28 November 2005. However, the applicant did indicate he suffered from lower back pain and that he would like this documented in his records. He also stated that the applicant had declined a REFRAD/post-deployment physical examination at Fort McCoy. This official recommended the applicant apply for the MRP2 (Medical Retention Processing 2) Program, as an exception to policy, in order for him to be temporarily returned to active duty, to be evaluated or treated for Reserve Component Warrior Transition with unresolved mobilization connected medical condition that either was not identified or did not reach optimal medical benefit prior to his REFRAD. He further stated that the NGB Personnel Division, in consultation with the Chief Surgeon's Division Office, recommended disapproval of the applicant's request to change his REFRAD date. 15. On 30 December 2008, a copy of the advisory opinion was forwarded to the applicant for information and to provide him the opportunity to submit a rebuttal. To date, he has failed to respond. 16. Army Regulation 635-200 provides the Army's policy for the separation from active duty of enlisted personnel. Section VI provided guidance on medical processing. It states, in pertinent part, that medical examinations incident to separation will be administered if requested. It further states, in pertinent part, that disposition through medical channels takes precedence over administrative separation processing. Chapter 4 provides guidance on separations for expiration of service obligation. Paragraph 4-2 provides guidance on discharge or REFRAD upon termination of enlistment and other periods of active duty or active duty for training. It states, in pertinent part, that Soldiers of the ARNG and U.S. Army Reserve (USAR) ordered to active duty for a period in excess of 90 days will, upon release from active duty, revert to control of the appropriate RC. 17. Army Regulation 635-40 provides guidance on the Army's PDES. Paragraph 3-1 contains guidance on standards of fitness because of physical disability and states, in pertinent part, that the mere presences of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. 18. The PDES regulation stipulates that in each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. Paragraph 3-2 contains guidance on presumptions and states, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade, until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. Paragraph 3-7 states, in pertinent part, that a Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. It further stipulates that Soldiers in the RC (other than Active Guard Reserve (AGR)) may be retained according to the provisions of Army Regulation 135-381. 19. Army Regulation 135-381 provides policy regarding incapacitation pay for members of the USAR, the ARNG, and the Army National Guard of the United States (ARNGUS). Paragraph 2-1(3)(f), states, in pertinent part, that active duty in support of a contingency operation occurs when an RC is ordered or volunteered for active duty for a military operation that results in the call or order to, or retention on, active duty of members of the uniformed services under Title 10, U.S. Code, sections 688, 12301(a), 12302, 12304, or 12406 or any provision of law during war or a national emergency declared by the President or Congress. 20. Paragraph 2-1(2)(a)(b) of Army Regulation 135-381 states, in pertinent part, that Soldiers on orders for 31 days or more, who would otherwise be retained on orders due to an incapacitation, but who elect to leave active duty, may be entitled to incapacitation pay upon the end of the orders. Continued medical treatment in military treatment facilities is authorized in accordance with Title 10, U.S. Code, section 1074a. It further stipulates that members may be retained on active duty, or treated at a military treatment facility, under Title 10, U.S. Code, section 1074a until returned to military duty. Treatment under Title 10, U.S. Code, section 1074a will terminate when the resulting incapacitation cannot be materially improved by further hospitalization or treatment, and the case has been processed and finalized through the PDES when eligible for disability processing. 21. Army Regulation 635-5 (Separation Documents), prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains instructions for preparing the DD Form 214 and states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The instructions for Item 12a (Date Entered Active Duty this Period) state, in pertinent part, to enter the beginning date of the continuous period of active duty. The instructions for Item 12b (Separation this Date) state to enter the Soldier's transition date. There are no provisions of modifying a separation date to credit active duty service not actually performed. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that he should be credited with continued active duty service from 2005, the date of his REFRAD, through the date he was placed on the TDRL and receive all pay and allowances due as a result was carefully considered. However, there is insufficient evidence to support this claim. 2. By regulation, the mere presences of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. Further, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. 3. The evidence of record confirms that on 28 November 2005, the applicant completed a DA Form 2697, in which he indicated that his overall health was the same compared to his last medical assessment in 2003, and that he had no conditions that limited his ability to work in his primary military specialty or require geographic or assignment limitations. Further, on that same date he declined the opportunity to undergo a post-deployment physical examination, as evidenced by a REFRAD checklist he completed on that date. 4. Subsequent to his REFRAD, the applicant continued to serve in the ARNG and on 12 June 2006, he extended his enlistment for 6 years and received a $15,000.00 bonus. He continued to perform his ARNG through 20 May 2008, nearly 3 years after his REFRAD, at which time he was evaluated by the PEB and found unfit for further service and placed on the TDRL. Given he confirmed he was physically fit and declined a separation physical examination during his active duty separation processing and based on his continued ARNG service subsequent to his REFRAD, which included an extension for which he received a bonus, there is no evidence that suggests his condition was physically disqualifying at the time of his REFRAD, and the regulatory presumption of fitness attached to continued service is applicable in this case. 5. The applicant's active duty orders specified a period not to exceed 730 days; however, it provided for earlier release. Therefore, absent any evidence that his early release was due to a disqualifying medical condition, the authority and reason for his separation assigned upon his REFRAD and documented on his DD Form 214 was proper and equitable. Therefore, there is an insufficient evidentiary basis to support a change to the separation date listed on his DD Form 214, or to provide him back active duty pay and allowances based on the subsequent unfitness determination that resulted in his being placed on the TDRL. 6. The applicant is advised that although there is no basis to support granting him the relief requested, he may wish to pursue application for the MRP2 program, as an exception to policy, through ARNG channels as outlined in the NGB advisory opinion provided in this case. 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) AR20080011090 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080011090 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1