IN THE CASE OF: BOARD DATE: 20 November 2020 DOCKET NUMBER: AR20200000896 APPLICANT REQUESTS: in effect – * his DA Form 5016 (Chronological Statement of Retirement Points) be corrected to reflect duty he performed in a "points only" status with the California Army National Guard (CAARNG) from 1 July 2014 through 31 October 2018 * to add his Meritorious Service Medal (MSM) to his DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 2-DD Forms 149 (Application for Correction of Military Record) with statement * Memorandum for Record (MFR), Headquarters, CAARNG, Subject: Delegation of Services and Physician Assistant (PA) Supervision Agreement, dated 1 July 2014 * Joint Force Headquarters (JFH), CAARNG, Orders 273-1059, dated 30 September 2014 * State of CA, Office of the Adjutant, Sacramento, CA – * Orders dated October * Orders, dated October * Orders, dated October * Orders, dated December * Orders, dated December * Orders, dated February * Orders, dated February * DA Form 1380 (Record of Individual Performance of Reserve Duty Training), dated 1 November 2014 * Email, Subject: Formulary: Please sign and return, dated 23 February 2015 * DA Form 638 (Recommendation for Award), dated 20 January 2018 * Physician Assistant (PA) Job Description, U.S. Army Webpage printout FACTS: 1. The portion of the applicant’s request which pertains to adding the MSM will addressed through administrative correction; therefore, it will not be considered by the Board. 2. The applicant states, in effect: a. The Reserve Points Accounting System (RPAS) contains inaccurate information. PAs in both the private and public (Federal) sector require a supervising physician in order to practice legally. As the State Surgeon, one of his jobs was to be the supervising physician for the PAs on the Civilian Support Teams (CST), as well as other PAs. In order to do this, he was placed on “points only” orders, 365 days a year minus the days he was on drill status, or on other orders (which would still give him 365 points a year, but with pay on those other days). b. He became the State Surgeon on 1 July 2014 and his RPAS does not reflect the correct retirement points associated with his position. His RPAS shows that on 16 May 2014 he had approximately 2,974 points. He contends that from 1 July 2014 to 30 June 2018 he would have earned 365 points x 4 = 1,460 points, plus 1 day for leap year, plus 123 points from 1 July 2018 to 31 October 2018, for a total of 1,584 points. The total points on his current RPAS should be 2,974 + 1,584 = 4,558 points. A difference of 1,054 (4558 - 3504) from what is currently recorded on his current RPAS. c. He provides a sample of the orders that should have been written, and the National Guard (NG) Policy, dated 15 April 2008, titled "Avoiding Personal Liability for Supervising PAs Assigned to CST/NG Regulation (NGR) 500-3/Army National Guard Instruction (ANGI) 10 2503. 8-11/A 140-185,2-4 (a). He also provides his actual “points only” and travel orders for the period 1 October 2014 through 31 December 2014. He contends this pattern should have continued until 31 October 2018. 3. On 10 September 1999, the applicant was appointed as a Reserve Commissioned Officer, to serve as a member of the ARNG. 4. The applicant’s record does not contain DA Forms 5016 (Chronological Statement of Retirement Points) covering the period from 1 October 2014 to 31 October 2018. 5. The applicant provides the following: a. A memorandum, subject: Delegation of Services and PA Supervision Agreement, dated 1 July 2014. This memorandum is an example of another PA’s agreement. This PA was licensed to practice in California, and he was on active duty orders assigned to the Office of the State Surgeon. His status as a PA was covered by the Federal Torts Claims Act (FTCA) for the purposes of medical liability exposure in the course of treatment of military members, dependents, retirees and other authorized beneficiaries. b. Orders, dated September, published by JFH. These orders transferred the applicant from duty as a surgeon with the Intelligence and Sustainment Company, 40th Infantry Division, Los Angeles, CA, to duty as a chief surgeon, JFHQ, Sacramento, CA, effective 1 July 2014. c. Several orders, published by State of California, Office of the Adjutant General, which ordered him to Full-Time National Guard Duty without pay and allowances, for the purpose of providing State Surgeon Office (SSO) Support-Retirement Points Only. These orders, along with associated travel orders and DA Forms 1380s (Record of Individual Performance of Reserve Duty Training) are listed below: * Orders, dated October, for the period 1 October 2014 to 15 October 2014 * Orders, dated October, for the period 18 October 2014 to 31 October 2014 * Orders, dated October, Annual Training, for the period 7 November 2014 to 10 November 2014 * DA Form 1380, dated 1 November 2014, for the period 1 October 2014 to 18 October 2014 * Orders, dated 16 December 2014, for the period 1 November 2014 to 6 November 2014 * Orders, dated 16 December 2014, for the period 11 November 2014 to 30 November 2014 * Orders, dated 17 February 2015, for the period 1 December 2014 to 4 December 2014 * Orders , dated 18 February 2015, for the period 15 December 2014 to 31 December 2014 d. An email from the PA, 9th CST, Joint Forces Training Base, Los Alamitos, CA, dated 23 February 2016. This email informed the applicant that the CST Formulary was released on that day, and required the State Surgeon’s signature. The applicant was asked about his availability to meet in order to put some faces to the name as their “supervising physician.” 6. He completed active duty in support of Operation Enduring Freedom, from 20 October 2017 to 17 February 2018. 7. His National Guard Bureau (NGB) Form 22, issued by the CAARNG, shows he: * retired in the rank of colonel (COL)/O-6 on 31 October 2018 * his primary specialty was 61H9B (Family Medicine) * he completed 23 years, 2 months, and 15 days of total service for pay, and the same amount of total service for retired pay * Item 18 (Remarks) states “ITEM 10E: TOTAL SERVICE FOR RETIRED PAY IS BASED ON CURRENT DOCUMENTATION AND CERIFICATION BY THE STATE RETIREMENT POINTS ACCOUNTING SECTION” * he was not available for signature 8. The applicant did not provide orders, DA Forms 1380s, or orders showing active duty service performed after 31 December 2014. 9. On 28 October 2020, the NGB provided an advisory opinion and recommended disapproval of the applicant’s request to have retirement points added to the RPAS. The NGB cited email correspondence, dated between 27 May 2019 and 5 January 2020, where attempts were made to address the applicant’s contention that from 14 May 2014 until he retired as the State Surgeon on 31 October 2018, he should have had points for every day. These emails further show that the CAARNG informed the applicant that proof of duty performance, not just orders, was necessary to award retirement points, and assignment as the State Surgeon did not qualify an individual to receive daily retirement points. The NGB official further stated: a. The applicant contends his RPAS is missing a difference of 1,054 points toward retirement for duty served while assigned in position as the State Surgeon from 14 May 2014 until he retired on 31 October 2018. b. The applicant has made multiple attempts to correct the issue with the CAARNG citing orders to receive retirement points only. c. According to an email, dated 31 July 2020, from Chief Warrant Officer 3, RS, the State informed the applicant that all Continued Medical Education (CME) provided previously [had been] accounted for in the absence of any new documentation being provided. d. The applicant provided email correspondence that documents speaking with the CAARNG G1 to request further acceptable verification in lieu of orders. e. The CAARNG G1 considered all the evidence and background information submitted by the applicant in his request for a memorandum to be submitted supporting the missing points. The G1 determined there was not sufficient evidence, in the absence of orders, to support crediting the applicant with the missing points. Therefore, that office supported the recommendation for disapproval. f. Should the applicant obtain additional information to support his time, that documentation should be submitted to the CAARNG G1 for consideration and correction to the RPAS. g. The CAARNG declined to make a recommendation on this case. 10. On 15 November 2020, the applicant provided a rebuttal stating that in order for the PAs in the 9th and 95th CST to function legally they would need a supervising physician. He contends that in “the ARNG the State Surgeon is the lead medical practitioner… that is legally authorized to supervise a PA.” The Army in its job description of a PA states the PAs “deliver specialty medical care with physician supervision.” His evidence confirms that the CST, and other full time PAs, recognized him as their supervising physician. The State Surgeon would need to be on orders 365 days a year for them to function. When not on other types of orders (AT, Active Duty Training (ADT), etc.), the State Surgeon would be on “points only” orders. The applicant provided the following NEW evidence. a. NGB Memorandum for State Surgeons, Subject: Avoiding Personal Liability for Supervising PAs Assigned to CSTs, dated 29 September 2006. This memorandum states in part: * a State Surgeon may avoid personal liability by ensuring that he/she is on Title 32 orders when supervising NG PAs * most PA supervision takes place while the surgeon is at his/her place of civilian employment * State Surgeons should work with their JFHQs to ensure that they are placed on orders whenever supervising PAs * options to consider include the placement of the State Surgeon on year-round AT orders; AD Special Work /Man Days; the performance of Unit Training Assemblies in four hour increments at times other than drill weekends; and training for “points only” * no matter which approach (or combination thereof) is employed, it was highly recommended that accurate records be generated and maintained as it may become necessary to establish that the surgeon was in status at the time of the event upon which a lawsuit is based b. NGB Memorandum, Subject: Avoiding Personal Liability for Supervising PAs assigned to CSTs, dated 15 April 2008. This memorandum states in part: * Army State Surgeons and Air Surgeons (SG/SAS) may avoid personal liability by ensuring that he/she is on Title 32 orders when supervising NG PAs * the SG/SAS was identified as the lead medical practitioner (State Surgeon or appointed Medical Corps Officer in writing) that is legally authorized to supervise a PA c. A sworn statement from COL (Retired) VDI, dated 10 November 2020. This individual served as the former State Surgeon CAARNG for 7 years, between COL TEA and the applicant. In his role he supervised the medical personnel in the CAARNG, including several PAs in the 9th and 95th CST. By law, PAs require physician oversight, regular review of their medical evaluation, diagnoses, treatment plans and prescribing practices. A State Surgeon would be placed on orders for “points without pay” for any day during which he was not on AT, ADT, State AD or otherwise covered. These orders were duly submitted to the CAARNG G-3 for approval, and were subsequently forwarded to the G-1 for retirement points. This arrangement gave him Federal legal protection, as the supervising physician, against any medical misfeasance or malfeasance on the part of the PAs he supervised. He provides copies of his orders between January 2013 and October 2013. d. A sworn statement from First Sergeant (1SG) (Retired) FLB, dated 4 November 2020, stating that during his tenure with the CAARNG SSO, the applicant was a senior physician who was in a “traditional National Guard” role. The duty of the State Surgeon during those duty days was to render medical opinions and complete profiling actions, medical boards, and related items, as well as, serve as medical advisor to The Adjutant General and other members of the command staff. Two events occurred to modify the nature of the State Surgeon’s duties. First, the NG created CSTs, staffed jointly by teams of Air National Guard and ARNG Active Guard/Reserve Soldiers who were trained and equipped to respond year round to potential Chemical, Biological, Radiological, Nuclear and Explosive (CBRNE) events. The PA’s duty was to ensure the day-to-day medical readiness of the CST Soldiers and Airmen, as well as, to provide onsite medical advice and supervision at CBRNE events. Second, the attacks of 11 September 2001 happened. PAs, by definition, require physician supervision. That supervising physician is then medically liable for the activities of the supervised PA. A full-time PA with the CAARNG; therefore, needed a full-time supervising physician. The workload of the State Surgeon grew exponentially in the days and years post 9/11. The solution was the State Surgeon was put on duty orders that were coded for retirement points only, no pay, when the State Surgeon was not otherwise performing military duty such a drill weekends and annual training periods. It was his duty to input the points only information into the ARNG orders system, submit the orders electronically to the CAARNG G-3 for approval, then ensure that these points only orders were coded appropriately in the G-1 retirement points. He input these type of orders for three successive State Surgeons, all now retired, COL TEA, COL VDI, and the applicant. 11. Regulatory guidance states if a Soldier performed active service (active duty or full- time National Guard duty) including annual training, whether paid or non-paid, and it was authorized in orders, then award one active service point for each day of training. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the advisory official that, absent evidence of duty actually performed, the available records do not support the applicant’s argument that he should receive a retirement point for each day during the period in question. Based on a preponderance of evidence and in the absence of additional evidence, the Board determined there is no error or injustice in the current calculation of the applicant’s retirement points. 3. The Board concurred with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: Other than the corrections addressed in Administrative Note(s) below, the Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are otherwise insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE: 1. The applicant’s official military records show he was awarded the MSM, in Permanent Order, dated 20 February 2018, published by the G1, Task Force Spartan, Kuwait. This award is not listed on his DD Form 214. 2. Add the MSM to Item 13 of the applicant DD Form 214, ending 17 February 2018. 3. The applicant should provide his new evidence (sworn statements) to the CAARNG G-1 for consideration per paragraph 5 of the NGB Advisory. ? REFERENCES: 1. National Guard Regulation 680-2 (Automated Retirement Points Accounting Management) contains procedures to establish and maintain retirement records. Table C-1 (Rules for Award of Retirement Points) states If a Soldier performed active service (active duty or full-time National Guard duty) including annual training, whether paid or non-paid, and it was authorized in orders, then award 1 active service point for each day of training. 2. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states the ABCMR begins its 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000896 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1