IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150008978 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150008978 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by paying him for performance of active duty for training during the period 25 August 2013 through 8 September 2013. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to his reinstatement for MEB processing, paying him for performance of a battle assembly after his date of separation, and changing the narrative reason for his separation. ______________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. IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150008978 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: a.  reinstatement for completion of his medical evaluation board (MEB) processing for a decision on his pre-existing medical condition that was aggravated by military duty, b.  payment for his attendance and completion of the Reserve Component Maneuver Captains Career Course, Phase II, c.  payment for a battle assembly attendance, and d.  changing his narrative reason for separation. 2. The applicant states: a.  He has a pre-existing condition that was aggravated by military duty and his condition was referred to an MEB in the fall of 2013. b.  His unit did not complete its paperwork until early 2014 and he was discharged during his MEB process. He made his unit aware of this, but no action was taken and his MEB process was cancelled. c.  He was discharged without receiving his pay for attendance and completion of the Reserve Component Maneuver Captains Career Course, Phase II, and a battle assembly (inactive duty training). d.  The battle assembly occurred 2 days after his effective date of discharge. e.  The Army has refused to pay him because he was no longer in the system. 3. The applicant provides: * U.S. Army Human Resource Command (AHRC) Orders T-06-305767, dated 5 June 2013 * U.S. Army Reserve (USAR) Form 25-R (Individual Active Duty Certificate of Performance), dated 8 September 2013 * USAR Form 26-R (Payment Document – Transmittal Letter * AHRC Form 3924 (Individual Active Duty Certificate of Performance), dated 19 September 2013 * Brooke Army Medical Center letter, undated * Headquarters, USAR Command, Orders 14-038-00002, dated 7 February 2014 * Department of Veterans Affairs (VA) letter, dated 11 July 2014 CONSIDERATION OF EVIDENCE: 1. Having prior service in the U.S. Marine Corps, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 13 May 1990. 2. On 30 May 1993, he was promoted to first lieutenant. 3. On 18 April 1994, he was granted a temporary appointment in the Texas Army National Guard (TXARNG) as a first lieutenant. 4. On 8 April 1994, he was granted Federal recognition as a first lieutenant in the TXARNG. 5. On 25 April 1996, he was honorably discharged from the TXARNG and he made an inter-state transfer to the Louisiana Army National Guard (LAARNG) as a first lieutenant. 6. On 21 November 1996, he was granted Federal recognition as a first lieutenant in the LAARNG. 7. National Guard Bureau Special Orders Number 52, dated 16 March 1999, transferred him to the Louisiana Inactive National Guard. 8. Headquarters, LAARNG, Orders 318-024, dated 14 November 2002, relieved him from the Louisiana Inactive National Guard and transferred him to Battery B, 1st Battalion, 141st Field Artillery, on the same date. 9. On 15 November 2002, he was honorably discharged from the LAARNG and transferred to the USAR Control Group (Reinforcement). 10. On 11 August 2005, he was released from the USAR Control Group (Reinforcement) and assigned to the 4013th USAR Garrison Support Unit. 11. On 20 January 2006, he was promoted to the rank of captain. 12. 23 February 2006, he was released from the 4013th USAR Garrison Support Unit and assigned to Headquarters, 108th Division (Institutional Training). 13. 108th Division (Institutional Training) Orders 06-083-00050, dated 24 March 2006, mobilized him as a member of his unit in support of Operation Iraqi Freedom effective 17 April 2006. 14. On 1 August 2007, he was ordered to active duty for a period of 1 year for the purpose of contingency operation for active duty operational support. 15. On 30 July 2008, he was honorably released from active duty. 16. On 13 October 2008, he was ordered to active duty for a period of 1 year for the purpose of contingency operation for active duty operational support. 17. On 12 October 2009, he was honorably released from active duty. 18. On 26 February 2010, he was mobilized for a period of 1 year in support of Operation Enduring Freedom. 19. On 25 February 2011, he was honorably released from active duty. 20. On 18 December 2012, he was notified of his non-selection for promotion to the rank of major. 21. On 5 July 2013, he was notified of his non-selection for promotion and his selective continuation on the Reserve Active Status List. He was advised that unless he specifically declined continuation, he would be continued until he completed 20 years of commissioned service as a captain, which was the maximum years of service allowed under the provisions of law guiding the retention. He was further advised: a.  future promotion selection boards would consider him for promotion as long as he remained eligible for consideration, b.  he had until 5 September 2013 to decide on his continuation, and c.  if he declined continuation, the law required his separation from the USAR not later than the first day of the seventh month after approval of the promotion selection board. 22. His response for his continuation on the Reserve Active Status List is not available for review. 23. On 25 August 2013, he was ordered to active duty for training for a period of 15 days for the Maneuver Captains Career Course Phase II training. 24. His USAR Form 25-R, dated 8 September 2013, shows his completion of 15 days of active duty training was verified. 25. He provided an AHRC Form 3924, dated 19 September 2013, that shows he completed the Maneuver Captains Career Course Phase II during the period 25 August 2013 to 8 September 2013. 26. He provided a USAR Form 26-R, dated 13 March 2014, that states he had not been paid for a period of active duty on orders outside of the Regional Level Application Software. 27. On 1 March 2014, he was honorably discharged. 28. He provided an undated letter from the San Antonio Military Medical Center (formerly known as the Brooke Army Medical Center) Physical Evaluation Board (PEB) Liaison Officer, Fort Sam Houston, TX, that states: * he underwent an MEB and he was issued a DA Form 3947 (Physical Profile) which listed his referred diagnosis and his claimed diagnosis (both diagnoses are unknown) * he was directed to make an election to agree or disagree with the MEB findings within 5 days * he had the option to request an impartial medical review * he was advised of his right to consult with legal counsel 29. His response to the letter from the San Antonio Military Medical Center PEB Liaison Officer regarding his MEB findings is not available for review. 30. On 11 July 2014, the VA notified him of his disenrollment from the Integrated Disability Evaluation System (IDES) process. 31. Coordination with the U.S. Army Physical Disability Agency shows he was disenrolled from the IDES process for voluntary non-disability separation or expiration term of service in accordance with the Veterans Tracking Application. 32. His records are void of and he failed to provide any evidence showing he performed battle assembly duty after his date of separation. 33. His medical records are not available for review and he did not provide medical evidence showing he was found unfit or referred for continued processing through the IDES. 34. His AHRC Integrated Web Services records show his mandatory removal date (MRD) and physical data, in part, as follows: * MRD – 1 January 2013 * Reason Retained beyond MRD – S (selective continuation board) * Expiration of Retention beyond MRD – 1 February 2014 * Date of Last Physical Examination – 5 September 2013 * Year/Month Profile – September 2013 * PULHES – * P (physical capacity or stamina) – 1 * U (upper extremities) – 1 * L (lower extremities) – 3 * H (hearing and ears) – 1 * E (eyes) – 1 * S (psychiatric) – 1 * Physical – Deployment * Category – Restrictions * Physical Capacity – No Limitations * Psychological Rating – No Limitations * Hearing – No Limitations * Vision – No Limitations * Vision – No Limitations * Upper Extremities – No Limitations * Lower Extremities – Significant Limitations * Post Deployment Health Reassessment (PDHRA) Medical Readiness Category Code – 3B * PDHRA Window – 10 May 2011 to 8 August 2011 * PDHRA Items Making Soldier Non-Medical Readiness Category Code Deployable/Not Correctable * Reason Code – Within 30 days 35. Coordination with the Defense Military Pay Office, Fort McCoy, confirmed the applicant had not been paid for the active duty for training he performed during the period 25 August 2013 to 8 September 2013. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 2. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. b.  Chapter 7 (Physical Profiling) provides a system for classifying individuals according to functional abilities and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. (1)  Four numerical designations (1-4) are used to reflect different levels of functional capacity in the six PULHES factors. (2)  Numerical designator 3 indicates an individual has a medical condition or physical defect which require certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual receives assignments commensurate with his or her functional capacity and the defect or impairment requires significant restriction of use. c.  Paragraph 9-12 states Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet medical retention standards of chapter 3 are eligible to request referral to a PEB for determination of fitness. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USAR Regional Support Command or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System 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 or her office, grade, rank, or rating. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. c.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. d.  Recommendations of the informal PEB are recorded on a DA Form 199. Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include: * concurrence with the findings and recommendations and waiver of a formal hearing * nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded e.  Soldiers indicate their elections by placing a checkmark in item 13 and signing and dating the original and the medical treatment facility copies. 4. Directive-Type Memorandum 11-015, dated 19 December 2011, explains the IDES and states the IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. DISCUSSION: 1. Officials at the Fort McCoy Defense Military Pay Office confirmed the applicant was not paid for the active duty for training he performed during the period 25 August 2013 to 8 September 2013. 2. Although he contends he was not paid for battle assembly duty performed 2 days after his discharge, his records are void of and he failed to provide evidence of this duty performance. 3. He contends he was referred to an MEB, he had a pre-existing condition that was aggravated by military duty, and he was discharged during his MEB process because his unit failed to take appropriate action. 4. The evidence of record shows the applicant underwent an MEB and he was assigned a physical profile. His Integrated Web Services records show he had a condition that was not correctable within 30 days. However, his records are void of and he failed to provide evidence of any medical condition for which he was found unfit for continued service. Further, there is no evidence he requested review of his case by a PEB for a fitness determination. 5. Although he was not selected for promotion, he was selected for continuation on the Reserve Active Status List until he reached 20 years of service. 6. His DD Form 214 correctly shows his narrative reason for separation on 25 February 2011 and he was properly discharged on 1 March 2014 in accordance with his MRD. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008978 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008978 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2