ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 December 2020 DOCKET NUMBER: AR20200001628 APPLICANT REQUESTS by Court-Remand on prior ABCMR case AR20150018420 decision the following: * The Army has failed to pay her for the period of service from April 19, 2012 through July 7, 2014, for which the ABCMR awarded her active duty credit * The Army has wrongfully denied her retired pay based on the grade of major, rather than the grade of captain * She is entitled to a promotion to major (MAJ)/O-4 * She is entitled to an award of Special Compensation for Assistance with Activities of Daily Living (SCAADL) benefits * She is entitled to an award of Non-Medical Attendant (NMA) benefits APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Court-Remand v. United States, No. * Complaint submitted to the court by the applicant’s attorney, Case, Document 1, filed , pages 1 of 18 * Ex Parte Response letter from the applicant’s counsel, dated 28 September 2020, with tabs A thru C FACTS: 1. The applicant, now retired due to disability, was a member of the California Army National Guard (CAARNG) in the Army Nurse Corps (ANC) in specialty 66B (Advanced Practice Adult/Public Health Nurse) in the rank of Captain (CPT). She was mobilized as a member of the ARNG and served on active duty (AD) at the Warrior Transition Command (WTC), Arlington, Virginia, from 2008 to 2010 and also from 2011 to 2012. She states that several health issues arose while she was at WTC, including a (mis)diagnosis of benign breast cancer, nine unresolved hernias, neurogenic urinary/bladder, and multiple orthopedic injuries. During March and April 2012, Army physicians determined that her health conditions required an extensive amount of care, along with comprehensive physical therapy (PT). However, the CAARNG did not extend the period of her AD service for medical care beyond the period she was initially ordered to AD. She was ordered back to AD on 8 July 2014 for physical evaluation for retention, retirement, or separation. She was found to have permanent unfitting disabilities and was honorably retired on 30 May 2015. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150018420, decision dated 14 February 2018. In AR20150018420, the applicant requested and received: * Correction of the record to show that she was on AD from 19 April 2012 through 7 July 2014, the period between her release from AD and returning to AD for disability evaluation contending that she should not have been released from AD in 2012 with unresolved disabilities that occurred on AD. In case AR20150018420, the ABCMR found that her release from AD in 2012 was an error and unjust, and directed that the record be corrected the record to show that she was on AD from 19 April 2012 through 7 July 2014, that she be given service credit for this AD period, and that she be paid AD pay and benefits for this period. The records were so corrected and she was so paid by the Defense Finance and Accounting Service (DFAS) on 26 December 2019 the amount of $202,997.59, less pay and benefits already received otherwise during that period, for a total payment of $118,705.86. * That she be promoted to the rank of MAJ and receive retired pay as a MAJ. She contended that she was selected for promotion to MAJ before she was retired on 30 May 2015. The ABCMR initially recommended approval but upon legal review of this recommendation, the Deputy Assistant Secretary of the Army – Review Boards denied this recommendation with the statement that “In accordance with Title 10, United States Code, section 629, upon her retirement, the applicant's name should have been administratively removed from the list of officers recommended for promotion. Her name mistakenly was not removed. The promotion list in question had not been approved by the Senate prior to the applicant's retirement. Consequently, the applicant's grade (CPT) was correct at the time of her retirement. Therefore, under the authority of Title 10, United States Code, section 1552, I have determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned to show that she was retired in the grade of Major.” 3. ARNG UNIT VACANCY PROMOTION ISSUE. a. The applicant contended that she should have been promoted to MAJ as a ARNG unit vacancy promotion. She states that on 10 August 2007, the CAARNG placed her in a paragraph and line TDA duty position authorized a MAJ (04). On 9 June 2013, she became eligible for a unit vacancy promotion to MAJ based on her having met the requirements under AR 135?155 and NGR 600?100. She requested her unit process her for a unit vacancy promotion in 2014 but her command (CAARNG) failed to process her request.” In 2007 to 2010, she was assigned as a Public Health Nurse to CA ARNG MED DET FWD 2 (A59); in 2011, she was assigned as a Public Health Nurse to CA ARNG MED DET (A39). b. However, her unit commander provided the following response on this question, “(The applicant) was a registered nurse assigned to the MEDCOM when I assumed command of the unit in 2013. During my entire 2?year tenure in command (2013?2015), I never once met this officer and she did not attend drill or perform satisfactorily in any other duty status. Although she was eligible for the UVA (unit vacancy) promotion process, I was unable to evaluate her duty performance due to her prolonged absence from the unit. As a result, I was unable to recommend any promotion consideration and I recall she disagreed with my decision in the matter. During this same period of time, (the applicant) was actively pursuing her own request to be returned to a T?10 active duty status to receive treatment for her stated medical concerns and I recall she had legal representation to assist her. The State Surgeon's Office successfully returned her to active duty for treatment. Subsequently, she was assigned to the WTU (Warrior Transition Unit) at Fort Lewis, WA, but was later transferred to a CCU (Community Care Unit) near her home in the bay area. I don't recall what happened with her case after that time, but she remained absent from the unit throughout.”, Medical Services, CAARNG, Director, Behavioral Health (Joint). c. The applicant’s ex parte response responded to this advisory stating there are numerous problems with statement. First, the applicant received two Officer Evaluation Reports (OER) for the reported periods of March 10, 2012 through March 9, 2013 and March 10, 2013 through March 9, 2014 from her unit (the CA ARNG Medical Detachment, UIC W8YTAA) showing that the commander was, during the first period,. (See enclosed TAB A, pgs. 17-18). During the second period, the applicant’s Senior Rater was. (See Id at 19-20). This demonstrates that was not in the applicant’s rating chain and had no basis to evaluate her duty performance at all. d. provided clarification of the contention in 3c above stating that that he was the commander of the applicant’s unit, the CAARNG Medical Detachment, and that he assumed command of that unit from in 2013. He stated that was his deputy commander. He confirmed that he was the applicant’s commander from 2013 until the applicant was placed on active duty orders in July 2014. He stated that did not recommend the applicant for a unit vacancy promotion (UVP). He stated that the applicant could not be considered for UVP because she was not medically fit at the time. Selection for a UVP process requires that the officer be “Best Qualified” and that would require several items to include, minimally, a current Army Physical Fitness Test (APFT) which she did not have. She did not drill with her assigned unit (CAARNG Medical Command) during his tenure making her duty performance unsatisfactory. Due to these medical and attendance factors, he was unable to adequately evaluate her duty performance and consider her for UVP process. He advised The applicant to prepare her officer personnel file for a DA Board promotion process when she entered the window of consideration. e. It is noted that the records show comments on the referenced OERs as: (The applicant) is currently recovering from an active duty medical injury that has caused her limited participation with drill. When she has been able to drill, (the applicant) actively participates and is very knowledgeable regarding her role as the Public Health Nurse as well as with the Warrior Transition Unit process. Should be promoted when eligible. (The applicant) did not complete an APFT during this rating period due to her medical injury. Soldier unavailable for signature. No OERSF (Officer Evaluation Report Support Form) was received from this soldier to complete the OER. Rated as fully qualified and Center of Mass. f. The applicant states that at this same time period, she was suffering from several health problems, including numerous hernias, 9 hernias, pelvic tissue wasting, chronic pelvic pain and breast cancer, that required surgical treatment and was the subject of the original ABCMR’s decision grant of partial relief crediting her with credit for active duty service from the period of April 19, 2012 until July 7, 2014 because she was improperly removed from orders. This makes statement that she did not “attend drill or perform satisfactorily in any other duty status” improper in that it holds the fact that she was unable to perform duties due to medical conditions against her and it fails to give effect to the decision of the ABCMR that the applicant’s removal from orders during this time period was an error or injustice. did confirm that the applicant was eligible for promotion due to unit vacancy procedures in 2013 through 2015. g. The applicant states that per National Guard Regulation (NGR) 600-100, paragraph 8-8, to be eligible for a unit vacancy promotion to the grade of Major, an officer must have served a minimum of four years in the grade of Captain. The same regulation, in paragraph 8-9, requires an officer to have completed any Advance Course to be promoted to Major. However, NGR 600-100, paragraph 8- 9, l, (5), waives mandatory military education requirements for Army Nurse Corps officers like the applicant. Additionally, on November 9, 2010, the AMEDD Officer Personnel Management Guidance memorandum waived all requirements for all AMEDD Officers promotions, except for 70 series and 67J Medical Service Corps officers, beyond the Officer’s Basic Course. (See TAB A, pgs.47-58 (especially pg. 53)). h. The applicant states that under National Guard Regulation 600-100, paragraph 8-11, a Soldier who is recommended for promotion by a State under unit vacancy procedures and is later “selected for promotion by a HQDA board convened under mandatory selection criteria, the State may promote the officer under unit vacancy criteria prior to the mandatory promotion eligibility date. [The record shows that the applicant was not eligible to be selected by the FY15 HQDA promotion board based on law and regulation because she had retired prior to Senate approval of the Board’s recommendation.] The requirement to conduct an FRB [Federal Recognition Board] is waived if the unit vacancy promotion is in the same branch and AOC as that for which the officer received mandatory promotion selection.” Additionally, federal law states: “Each officer of the National Guard who is promoted to fill a vacancy in a federally recognized unit of the National Guard, and who has been on the reserve active-status list or the active-duty list of the Army or the Air Force for at least one year and has completed the minimum years of service in grade specified in section 14303 of title 10, shall be examined for Federal recognition in the grade to which the officer is promoted.” 32 U.S.C. § 309. i. The applicant states that having been promoted to Captain on June 8, 2009, she became eligible for promotion to Major on June 9, 2013, based on time in grade requirements. She completed her RC Captain’s Career Course Phase I in September 2014, but, as noted above, the only requirement per AMEDD guidance for promotion to Major was the Basic Course, which she completed on February 3, 2006. (See TAB A, pg. 59.). She also held a valid paragraph and line coded for a Major on the enclosed Unit Manning Report, dated January 6, 2012. (TAB A, pg. 34.) Based on these facts, the applicant was eligible for unit vacancy promotion on June 8, 2013. explicitly stated that she was eligible for unit vacancy promotion. The applicant states that through inaction or failure to properly process her promotion packets, the applicant was not ever considered for a unit vacancy promotion. However, she did attempt to be considered from 2012 on for several DA promotion boards but was not considered until her FY15 RC MAJ AMEDD Board. This is despite the applicant having made numerous attempts, beginning in 2012, to submit a promotion packet and various Army and CAARNG officials failing to properly process her packets. j. The applicant states that on February 27, 2012, she emailed Human Resources Command, and stated that she, “Would like start putting my packet together for the MAJ board. I am a CPT with the CAARNG with a current assignment at the Warrior Transition Command in Alexandria Va. Please advise.” (TAB A, pg. 21.) The same date, the DA Boards ANCOIC forwarded her email to several CAARNG officials. Id. Thereafter, the applicant worked with her unit Admin NCO, to prepare a promotion packet. On May 22, 2012, the unit Admin NCO contacted the applicant via email and requested several documents for the promotion packet. (TAB A, pgs. 23-26.) On July 17, 2012, the applicant sent the unit Admin NCO an email noting that in the June drill she personally provided a copy of the requested documents and requested on update. Id. The same day, the unit Admin NCO replied via email that “I am still working on adding documents to your file, I will keep you inform [sic] as soon as new information comes out.” Id. Not hearing anything further, the applicant emailed the unit Admin NCO again on September 11, 2012, again requesting an update. Id. On September 14, 2012, the applicant again emailed the unit Admin NCO and summarized all of the actions taken, including her providing copies of requested documents and to follow up on a phone call to her. Id. In a reply email, the unit Admin NCO stated, “Yes, I do not handle officer promotions. I can assist putting together promotion packets, I can also help you file and documents that you might need in your records (iPERMS). You requested information on when the next board for MAJ is and I do not have an answer for you.” Id. She then provided a point of contact for officer promotions at the CAARNG and copied him on the reply email. Id. He replied to the unit Admin NCO and provided to potential dates for two promotion boards, RESERVE COMPONENTS MAJ AMEDD/CPT AMEDD SELCON 27 NOV 2012- 18 DEC 2012 and MAJ AMEDD/CPT AMEDD SELCON 19 AUG 2013 -28 AUG 20l3.” Id. On September 18, 2012, the unit Admin NCO emailed the applicant and stated that she had all copies of documents provided by her and that she would forward her an updated Officer’s Record Brief (ORB) that she would need for her promotion packet. (TAB A, pg. 24.) On November 20, 2013, the CAARNG sent eligible officers, including the applicant, notification of updated DA promotion boards for FY 2014. TAB A, pgs. 30-31. The boards notification included the CPT-MAJ AMEDD board, set to convene on April 8, 2014 with a zone of consideration date of August 31, 2008. (TAB A, pg. 27.) On the following day, the applicant replied and asked if she was eligible for promotion while awaiting a Medical Evaluation Board. (TAB A, pg. 30.) On May 9, 2014, through May 12, 2014, the applicant and CAARNG officials corresponded via email on several occasions, with the applicant noting errors in her ORB and records. (Id. at 28-30.) She also provided updated and copies of documents to update and correct her ORB. (Id.) The CAARNG responded that “Your unit can update the assignment history based on supporting documents you provided them.” Despite the applicant providing numerous copies of documents, requests for updates and corrections to her ORB, the unit and the CAARNG did not complete the required actions for submission of a promotion board packet. Finally, in 2015, the applicant was contacted and notified of her consideration by a promotion board. (See TAB A, pages 60-62.) As you are aware, this board, the FY 2015 AMEDD board, ultimately considered her for promotion and recommended that she be promoted to Major. k. The applicant states that from 2012 through 2014, she diligently and repeatedly requested assistance with submission of a promotion board packet. As early as June 9, 2013, she was eligible for a unit vacancy promotion under NGR 600-100. In 2013 and 2014, she could have been considered for a DA promotion board. The fact that her unit and the CAARNG did not properly assist her, update her ORB, or prepare a promotion packet for several years, especially given that she held a valid paragraph and line number coded for Major since before her eligibility based on time in grade requirements, represents an error or injustice that the ABCMR should correct. We respectfully request that the ABCMR correct the applicant’s records to reflect promotion to the grade of Major as early as June 9, 2013 based on unit vacancy criteria, or as of the announced board results of the FY 2013 or 2014 DA promotion boards for AMEDD Majors. [The applicant was not considered or selected by the FY2013 or FY2014 DA promotion boards.] l. The applicant requests that should the board not agree with the grant of this relief, we request in the alternative that the ABCMR direct that a special standby board (SSB), convened under AR 600-8-29, Chapter 7, consider the applicant for promotion to Major at of her earliest date of eligibility and any later date. 4. DA PROMOTION SELECTION BOARD PROMOTION CONTENTION and DEFACTO PROMOTION CONTENTION. a. The applicant contended that she should have been promoted to MAJ based on selection for promotion by the pursuant to 10 U.S.C. § 1372, as associated with the results of the Fiscal Year 2015 (FY15), Reserve Component (RC), Major (MAJ) Army Medical Department (AMEDD), convened on 30 March 2015 and recessed 15 April 2015. The Deputy Principal Under Secretary of Defense (Personnel and Readiness) approved the board report on 8 October 2015. The applicant was retired on 30 May 2015. b. However, the Chief of the Officer Selection Board, Office of the Deputy Chief of Staff G1, Headquarters, Department of the Army, provided the following advisory concerning promotion based on this PSB. Pursuant to 10 U.S.C. sections 14310(d) and 14317(a), if an officer on the reserve active status list (RASL) is transferred to a retired status following recommendation for promotion to a higher grade, but before being promoted, the officer’s name shall be administratively removed from the list of officers recommended for promotion and treated as if they were not considered and recommended by the PSB. c. The advisory states that the applicant was considered in the Army National Guard of the United States (ARNGUS) Army Nurse Corps (AN) competitive category and subsequently recommended for promotion by the board. At the time of the PSB, the applicant was a member of the CAARNG, on the Reserve Active Status List (RASL), serving on continuous active duty 12301(h) orders, since 19 April 2012. On 30 May 2015, the applicant was retired, transferred to the Retired Reserve, removed from the RASL, and placed on the Temporary Disability Retired List (TDRL). The CAARNG immediately withdrew her Federal Recognition upon transfer to the Retired Reserve. On 4 February 2020, a correction of the applicant’s records show her placement on the Permanent Disability Retired List (PDRL) effective 2 June 2015, and eligible to receive retired pay. d. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraphs 2-6 and 3-18, indicate that “an officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list.” Paragraph 4-1c also states, “An officer who is on a promotion list and is removed from the RASL before the effective date of promotion will not be promoted.” Paragraph 4-11 states that an officer who has been recommended for promotion to the next higher grade must be on the RASL and medically qualified. e. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-30c, addresses the grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. This provision details requirements for RC officers that include the requirement for the officer to be on an approved promotion list “prior” to the effective date of transfer to the retired list. The applicant was transferred to the retired list on 30 May 2015 prior the approval of the promotion list on 8 October 2015 therefore she was not eligible for promotion based on the FY15 RC MAJ AMEDD promotion selection board. f. The advisory states that the applicant was transferred to a retired status prior to the approval of the PSB board report, so by statutory authority and Army policy, her name was administratively removed from the promotion list. Title 10, USC, section 14317(a) states that if a reserve component officer on the reserve active-status lists (RASL) is retired after having been recommended for promotion to the next higher grade, the officer may not be placed on a promotion list or promoted to the higher grade. g. The applicant and her attorney were provided these advisories under ex parte to which they responded, “While we agree with the statements made in this opinion, there remains an issue as to the issue of (the applicant’s) eligibility for promotion based on her placement on backdated orders if one accounts for the time for accrual of leave and transition leave. (The applicant) was retired with an effective date of May 31, 2015 [May 30, 2015 is the correct date]. As a baseline, we agree with the statements in advisory opinion describing the authorities for promotion and the removal of officers from the Reserve Active Status List (RASL), generally. However, we point out that (the applicant) was promoted to the grade of Major via Orders 082-0001, dated March 23, 2018. There is a legal distinction between a member not being promoted and the issue of administratively reducing a member for alleged “administrative errors.” Once on the promotion list and promoted, the only authority to remove an officer is the President of the United States. See Army Regulation 135-155, paragraph 3-18, the only person who can remove a person from a promotion list is the President of the United States. The applicant was never properly removed from the relevant promotion list by the President.” h. However, the Board noted that this ex parte response incorrectly states that the applicant was promoted to major by Orders 082-0001, Joint Base Lewis-McChord, dated 23 March 2018, which are amendment orders as shown by “700” format orders in the orders format line. AR 600-8-105 (Military Orders) states that the “700” format orders are amending orders, not promotion orders. According to AR 600-8-105, promotion orders are format 305, officer promotion orders. The 700 format orders amended the prior Orders 138-0006, dated 18 May 2015, orders format 662, which released the applicant from assignment and duty and placed her on the permanent disability retired list. AR 600-8-105 states that orders format 662 is for disability retirement (permanent) of ARNGUS or USAR officers on active duty. Orders format 662 is likewise not a promotion order. Further, according to AR 135-155, the Commander, Joint Base Lewis-McChord is not authorized to issue officer promotion orders for ARNG officers. i. The Board noted that the Joint Base Lewis-McChord orders 138-0006, dated 18 May 2015, orders format 662, released the applicant from assignment and duty and placed her on the permanent disability retired list as a result of unfitting physical disability determination through the Physical Evaluation process. The 700 format amendment orders issued by Joint Base Lewis-McChord were the result of a misreading of the ABCMR case AR20150018420 issued on 14 February 2018. Joint Base Lewis-McChord corrected the 18 May 2015 orders based on incorrectly reading the ABCMR decision issuing the 23 March 2018 amendment 700 format orders. This error was discovered and on 16 August 2018, Joint Base Lewis-McChord issued 700 format orders amending the erroneous 23 March 2018 orders to the effect that they were unchanged to include showing the applicant’s retired rank as captain. The applicant and counsel incorrectly term this an administrative reduction when in fact they were amendments of a orders format 662 for disability retirement. j. The applicant and counsel contend that once on the promotion list and promoted, the only authority to remove an officer is the President of the United States citing AR 135-155, paragraph 3-18, the only person who can remove a person from a promotion list is the President of the United States. The applicant was never properly removed from the relevant promotion list by the President. However, the applicant was never promoted to major as outlined in the subparagraphs above. The applicant and attorney are referencing AR 135-155 which was effective 1 November 2001. Title 10, United States Code (USC), section 14310, effective 3 January 2012, clarifies this by stating that “the President may remove the name of any officer from a promotion list at any time before the date on which the officer is promoted.” This law further states in subsection (d) “Administrative removal. Under regulations prescribed by the Secretary concerned [such as Secretary of the Army], if an officer on the reserve active-status list is … transferred to a retired status after having been recommended for promotion to a higher grade under this chapter …, but before being promoted, the officer's name shall be administratively removed from the list of officers recommended for promotion by a selection board.” Further, by Executive Order 12396, the President delegated to the Secretary of Defense authority to remove the name of any officer from a promotion list to any grade below commodore or brigadier general. The Secretary of Defense further delegated this authority to the Service Secretaries. Accordingly, the removal of the applicant’s name from the promotion list is not done by the President. k. However, the Board noted that the 18 October 2015 HRC memorandum announcing the results of the FY15 RC MAJ AMEDD Board, published by the Adjutant General of the Army for the Secretary of the Army, expressly states that the enclosed promotion lists are subject to additional administrative review, they are not to be construed as promotion orders; the Commander, HRC will remove from the lists those officers who separate or retire prior to being promoted from the lists. The memorandum further states that promotions from the list will be announced by HRC orders. This is consistent with 10 USC 14310 and Executive Order 12396. No orders were issued by HRC to promote the applicant to major. l. The applicant and counsel requested the Board consider whether the applicant she could be properly “reduced in grade,” once she was promoted via orders, an explanation of the legal basis for a decision reducing her without due process, and consideration of whether a de facto promotion occurred under AR 600–8–29, paragraph 1-22. Paragraph 1-22b states that if an officer's promotion is declared void and if the authority who revokes the promotion order determines that the officer had, before the declaration, accepted the promotion (for example, worn the insignia) in good faith and worked in the higher grade, then he or she will be deemed to have served in the higher grade in a de facto status. This period of de facto status will be from the date of the erroneous promotion until the date the officer received notice that it was void. This will allow the officer to keep any pay and allowances received at the higher grade. If it is proper to promote the officer at any time after the erroneous promotion, orders will be issued announcing the promotion. m. However, the Board noted in the subparagraphs above, that HRC did not publish a promotion order to promote the applicant to major as required by regulation. The erroneous amendment order for retirement which incorrectly showed her retired rank as a major was not a promotion order nor was the subsequent amendment order that corrected this error a revocation of a promotion order as no promotion order existed. These amendment orders did not constitute defacto promotion. The applicant received no pay or allowances as a major nor did she serve in the rank of a major. Further, paragraph 1-16 of AR 600-8-9 states that HQDA will announce all promotions under this regulation in Army HRC orders using orders format 300. Promotion revocation orders will use orders format 705. No such orders were issued by HRC nor were there any such orders revoked by HRC. The 700 format amendments orders were not issued by HRC, were not promotion orders or revocation orders (not 300 or 705 format orders), and did not constitute a defacto promotion as described in AR 600-8-29, paragraph 1-22. 5. PAY CONTENTIONS. a. The applicant was provided by ex parte, a DFAS-DE Form 67 (Military Pay and Allowances Voucher), dated 26 December 2019, showing that she was paid by direct deposit to her bank $118,705.86 for active duty (AD) for the period 19 April 2012 to 7 July 2014 as a correction of records directed by the ABCMR in case AR20150018420. The also voucher shows collections of base pay (BP), drill pay (DP), INCAP BP, basic allowance for subsistence (BAS), INCAP BAS, basic allowance for housing (BAH), and INCAP BAH that she had previously received during that period which are not authorized when receiving full AD pay and allowances. It also shows that the total amount paid for this period of AD was reduced by “Less Civilian Wages, $31,006.43.” b. The applicant and her attorney state in their ex parte response that monies for “civilian wages” were improperly deducted from her payment from DFAS. The basis for this deduction is not explained in the pay documents and it appears that they are an erroneous offset. c. They state that the DFAS-DE Form 67 states, in part II (Entitlements) a deduction (described as “less civilian wages”) in the amount of $31,006.43. While it is true that a military member who is “deprived of military pay by virtue of a wrongful separation must generally mitigate his damages with any income from subsequent civilian employment,” there are exceptions to this rule. See Groves v. U.S., 47 F.3d 1140, 1147-48 (Fed. Cir. 1995)(citing Motto v. United States, 360 F.2d 643, 647, 175 Ct.Cl. 862 (1966). [See the Ex Parte response for details.] d. The applicant’s counsel contends that in the applicant’s case, the full amounts earned in the relevant time period of 2012-2013 that she was paid from her civilian employer was for her accrued benefits for her previous years of employment. The DFAS DE Form 0-110 (enclosed in TAB B) show “wages” of $30552.16 for 2012 and $454.27 for 2013. In the enclosed email from her civilian employer, dated April 26, 2012, the applicant had 311 hours of “sick time,” 293 hours of vacation time, 24 hours of “floating holiday” time, and 40 hours of “education” time. This totals 668 hours of accrued benefits in the form of wages collectible on request. In the follow up email from the applicant, she requested to take her wages in 2 weeks of accrued sick leave first, then “longevity leave,” (vacation time), then “floating holidays, and finally, educational leave. See TAB B, pgs. 1-2. In her reply email of May 8, 2012, the applicant’s employer agreed to process her accrued payments according to her wishes. Id. Additionally, in the email exchanges, the applicant and her employer discussed when she was planning to return to work. Id. This demonstrates that the applicant’s payments for civilian wages were not for work performed in 2012 and 2013 (as she did not return to work due to her medical conditions and need for treatment), but rather were payments for previously earned benefits. These payments, which we agree total $31,006.43, were not dependent on her being in an (erroneous) civilian status at the time. The applicant was entitled to these monies based on previously performed work for her civilian employer and it did not matter whether she was in a military status or not when she was paid these monies. Under the Groves case, this makes her civilian earnings for 2012-2013 not subject to offset and, therefore, the ABCMR should order that the applicant’s pay records be corrected to reflect a credit (or return of improperly deducted monies) in the amount of $31,006.43. e. However, the Board noted that the civilian wages of $31,006.43 were properly deducted from the AD pay for this period in accordance with DoD FMR 7000.14-R, Volume 16, Chapter 4, 041002, which states that the Secretary of a Military Department, under procedures established by that Secretary and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that Military Department, may correct any military record of that department when the Secretary concerned considers it necessary to correct an error or remove an injustice. If an individual is owed money pursuant to the correction of record, any “earnings received” from civilian employment, self-employment, or any income protection plan for such employment during the period for which active duty pay and allowances are payable must be deducted from the settlement. Refer to Volume 7B, Chapter 10 for additional guidance on correction of records. The Board also noted that it is when the civilian earnings are “received” regardless of when they were earned. The applicant “received” the civilian earnings of $31,006.43 during the corrected period of AD from 19 April 2012 to 7 July 2014. f. In the ex parte response, the applicant’s counsel states that it is unclear if there has been an accurate accounting of time that The applicant should have in her records as a result of the correction of her records. This issue include time for accrued leave and any time she should be credited with for transition (including time for a military move to her Home of Record from her final duty station). g. The Board noted that on the DFAS-DE Form 67, the applicant was paid for leave accrued during the AD period 19 April 2012 to 7 July 2014 by a lump sum leave (LSL) payment of $15,021.40 for 67 days of leave she would have earned during the period. h. The Board also noted that any time the applicant was entitled to for transition (including time for a military move to her Home of Record from her final duty station) was not part of the corrected pay period but would have properly been included in her final AD period 8 July 2014 to 30 May 2015. No evidence has been presented to show that she was not provided transition entitlements when she was retired for disability. The Case Management Notes from the Madigan Warrior Transition Unit (WTU), 8 May 2015, show that the applicant was going on transitional leave. 6. TRAVEL and PER DIEM EXPENSES. The applicant contends that she should be reimbursed for travel and per diem expenses she incurred during travel to and from her home in California to the WTC at JBLMC while she was undergoing medical treatment and evaluation from 19 July 2012 to 30 May 2015. In the ex parte response, TAB B, she provides a list of the expenses from 29 January 2012 to 24 May 2015. Such reimbursement would be appropriate consistent with the prior ABCMR decision to correct the records to show that she was on AD from 19 July 2012 to 30 May 2015. However, the applicant has not provided receipts. In order to be reimbursed, receipts must be attached to a Department of Defense travel voucher form for submission. 7. SPECIAL COMPENSATION FOR ASSISTANCE WITH ACTIVITIES OF DAILY LIVING (SCAADL) and NON-MEDICAL ATTENDANT (NMA). a. The Army Review Boards Agency (ARBA) medical advisor, a medical doctor, provided the following advisory concerning SCAADL and NMA. This was provided to the applicant under ex parte. The applicant applied for SCAADL but because she did not meet several of the required criteria, she did not get it. The key is the Armed Forces Health Longitudinal Technology Application (AHLTA) [applicant’s digital medical records] note of 26 March 2015: “Reports received for home health PT and nursing evaluation. Reports state the soldier is independent with Activities of Daily Living (ADLs) and will be driving.” The applicant could not receive SCAADL and VA moneys at the same time. SCAADL stops when a Service member begins receiving certain VA Aid & Attendance compensation. The SCAADL program provides Service members who have a permanent catastrophic injury or illness incurred or aggravated in the line of duty on or after Sept. 11, 2001, compensation to pay their primary caregivers who provide non-medical care, support, and assistance. This person, typically a friend or family member who is referred to as non-medical attendant (NMA), provides additional support as the Service Member recovers, rehabilitates and transitions. Support may include driving the Service Member to appointments, providing a safe home environment, assisting with shopping, assisting with medication management, and/or assisting with managing medical and administrative paperwork. b. To be eligible for SCAADL, the service member must meet ALL of the following conditions: (1) Be an outpatient and have a designated primary caregiver (2) Category 3 criteria (certified by DOD or VA physician), as outlined in DODI 1300.24, Has a severe of catastrophic injury or illness Is highly unlikely to return to duty Will most likely be medically separated from the military (3) Have a permanent* catastrophic injury or illness** incurred or aggravated in the line of duty (4) Have been certified by a DOD or VA licensed physician to be in need of assistance from another person to perform personal functions required in everyday living or requires constant supervision (5) In the absence of caregiver assistance, would require hospitalization, nursing home care, or other residential institutional care. c. Excerpts from her Case Management Notes from the Madigan Warrior Transition Unit (WTU): 12 Mar 2015: Kindred at home health care contacted to complete a home health visit for ADL assessment for SCAADL. ST (Soldier in Transition) has not completed her SCAADL. She was notified two weeks prior to complete a request for SCAADL memorandum. ST educated in regards to NMA. She was informed the NMA must be at the bedside frequently to receive this. She verbalized response. 18 Mar 2015: Home health RN has visited and reported there is no need to utilize, we will be awaiting the PT/OT consultation for activities of daily living ... ST reports that she will be conducting physical therapy in the coming weeks. ST did request SCAADL, the paperwork has been e-mailed to this soldier, and there has been no return of the originating memorandum. Records received from soldier. 26 Mar 2015: Reports received for home health PT and nursing evaluation. Reports state the soldier is independent with ADLs and will be driving. ST wrote an exception to policy for NMA and SCAADL to be back dated. This was submitted to C2. 2 Apr 2015: She displays concern that a “request for SCAADL did not meet criteria and was essentially denied.” 1 May 2015: ST states she will be going for medical TDY 4 May -5 May. She will then attend a care conference for her mother 11 May. Her day to travel to Joint Base Lewis-McChord (JBLM) for transproc (transition processing) will be 12 May. 8 May 2015: ST calls for weekly appointment. She is currently in Vancouver, WA visiting her mother for the VA conference. She will then travel to the CCU at JBLM for transproc, and eventually go on transleave (transitional leave). 18 May 2015: She was previously counseled for SCAADL and NMA, as she “did not meet criteria for these particular issues.” Soldier was educated in regards to the criteria for NMA and SCAADL. She verbalized understanding, but feels she still believes she meets criteria in the past when she was post- surgical for her hip surgery. She has requested that I send her paperwork to someone's email address. I educated (the Soldier) that C2 (Command and Control) has the paperwork for this, and NCM (Nurse Case Manager) only has a small part of the SCAADL and NMA administrative tasks. d. As reference, the Department of Defense (DoD) Special Compensation for Assistance with Activities of Daily Living (SCAADL) program provides Service members, who have a permanent catastrophic injury or illness incurred or aggravated in the line of duty on or after September 11, 2001, compensation to offset the economic burden borne by their primary caregivers providing non-medical care, support, and assistance. e. Permanent and catastrophically ill and injured Service members and/or their designated representative can voluntarily apply for SCAADL compensation and should reach out to their primary care managers, care coordinators, or Service Wounded Warrior Program staff to discuss eligibility requirements for receiving this special compensation. f. Procedures. Eligible Service members, after being certified by a DoD or VA licensed physician to have a permanent catastrophic condition, undergo an assessment to determine the level of assistance required and the level of support provided to perform the personal functions required in everyday life or for constant supervision to avoid harm to themselves or others. A DD Form 2948 (Special Compensation for Assistance with Actives for Daily Living (SCAADL) Eligibility) is used to apply for SCAADL. The form is filled out by an attending physician who scores the Soldier’s ability to perform activities of daily living from medical records, observation, and examination. Following the evaluation, the Military Department overseeing the respective SCAADL program determines whether the member will be approved to receive SCAADL compensation. g. Compensation. Once approved, the amount of SCAADL compensation a Service member receives is based on a three-tier system that reflects care required by the Service member and provided by their caregiver: •Tier 1 reflects a need of at least 10-24 hours of caregiver services per week •Tier 2 reflects a need of at least 25-39 hours of caregiver services per week •Tier 3 reflects a need of at least 40 hours, or full-time, caregiver services per week h. The amount of monthly compensation is based on the Department of Labor’s Bureau of Labor Statistics wage rate for a home health aide in the Service member’s geographical location. For example, a Service member receiving a Tier 1 compensation level in Montgomery, Alabama may receive a different amount of monthly compensation than a Service member receiving a Tier 1 compensation level in Los Angeles, California, due to the different wage rates in those geographic areas. i. A Service member may continue receiving SCAADL compensation until the earlier of: (1) 90 days after discharge from Military Service; (2) when a DoD or VA licensed physician determines the Service member no longer meets SCAADL eligibility requirements; (3) when the Service member begins receiving VA Special Monthly Compensation (1114(r)(2) of Title 38, U.S.C); or (4) when the Service member’s caregiver begins to receive compensation through VA’s Comprehensive Assistance for Family Caregivers Program. j. VA Comprehensive Assistance for Family Caregivers Program. Severely injured Service members who have an established discharge date may be eligible to apply for the VA’s Program of Comprehensive Assistance for Family Caregivers, which provides their caregiver a monthly stipend as well as other assistance. DoD policy prohibits Service members from receiving SCAADL compensation while their caregiver receives the VA caregiver stipend. Service members who believe they are eligible for the VA’s Program of Comprehensive Assistance for Family Caregivers should apply. k. The advisory from the ARBA medical advisor in paragraph 6a-c above was provided to the applicant under ex parte. The applicant and counsel provided response to the advisory stating that the applicant requested through her unit and on appeal to the ABCMR the award of SCAADL and NMA benefits. Both her unit and the ABCMR denied her the award of compensation through these programs. The advisory opinion on this matter, a memorandum for record from the ARBA Medical Advisor, recommends denial of relief. However, the facts and evidence show that The applicant was qualified to receive both benefits and it was an error that her unit and the ABCMR did not grant her requests for the award of SCAADL and NMA benefits. Before discussing the facts that show her entitlement to these benefits, we note that the advisory opinion recommended denial in part because “2. (The applicant) could not receive SCAADL and VA moneys at the same time. SCAADL stops when a Service member begins receiving certain VA Aid & Attendance compensation.” While we have no particular disagreement with this general statement, it does not apply to the applicant. She never has received VA Aid & Attendance compensation. [However, the Board noted in a 3 November 2016 letter from the Warrior Transition Command Former Advocate Support Chief, states in As of this date The applicant is approved through the Veterans Administration for Caregiver Support which is an extension of SCADDL. (Ex Parte Response Tab C 3.)] l. The issue of the applicant’s entitlement to SCAADL and NMA benefits is complicated and encompasses several years of her application for these benefits, their denial, her medical issues, treatment, and situation. Given the complexity of the issues and The applicant’s deep familiarity with the fact and the issues, she has drafted a statement that explains why she should be awarded both SCAADL and NMA compensation. (See TAB C, pgs. 1-16.) While not meant to supplant her statement, we wish to draw the board’s attention to several points The applicant has raised: “In its August 2017 findings, the ABCMR agreed that The applicant was wrongly denied active duty continuation orders for time period 19 April 2012 through 7 July 2014. It was during this time period that The applicant and her family should have received SCAADL, which extends 90 days beyond retirement orders and, NMA until the date she was medically retired. MEDCOM published The applicant’s backdated orders for the aforementioned time period in December, 2018.” “The applicant did apply for SCAADL and NMA many times with different individuals such as submitted through Nurse Case Managers Brad Miller, CPT Parrish, and PCM Todd McLaughlin (PA). These were submitted while she was on Title 10 orders but according to a JBLM IG investigation dated October 2015, the Warrior Transition Battalion at JBLM, did not submit her multiple requests for SCAADL and NMA through the proper Chain of Command and failed to adhere to Congressionally Mandated policies in place for these programs.” (TAB C, pgs.1,28-29.) “The applicant’s medical conditions met the primary threshold for catastrophic/ serious medical conditions 10 May 2013. However, due to the break in her active duty orders, she was not afforded the opportunity to apply for or receive SCAADL and NMA until 9 July 2014.” “We appreciate the advisory opinion but it failed to note the Warrior Transition Command Chief, the Executive Officer and eligibility cell liaison provided letters indicating The applicant should receive both SCADDL and NMA (the WTC is the approval authority for SCAADL and NMA appeals). The advisory opinion failed to note that The applicant’s case was investigated by JBLM IG and it was determined that JBLM, WTB Chain of Command, failed to process The applicant’s SCADDL and NMA applications and noted The applicant should apply for the VA Caregiver program.” “The opinion disregards CPT Sweeny’s treating providers statements which repeatedly state she required ADL assistance. The advisor appears to assume both SCAADL and NMA are not retroactive and the same programs. However, the programs are very different in nature and both programs require a provider to note the soldier has a catastrophic or serious medical condition and is need of assistance with activities of daily living.” “The advisor is correct in that the SCAADL policy notes it is not retroactive but in the applicant 's case we request the board consider SCAADL case, AR20160016684 which is similar or the same as CPT Sweeney’s and the board did grant and backdate SCAADL. We ask that the board look to (Wilhelmus v Green and Kreiser v Secretary of the Air Force) when reviewing the applicant’s case– and decide in favor of The applicant and her family for both SCAADL and NMA. NMA regulations or policies do not state that NMA cannot be backdated. Like The applicant, the Applicant in the aforementioned case required SCADDL, and ‘through no fault of his own applicant was not screened for SCADDL in a timely manner, treatment left him significantly debilitated and upon discharge, necessitated his family to care for him and assist him with typical activities of daily living. Without his family’s assistance, would have been unable to care for himself and he would have required inpatient admission for the majority of his recovery.’” m. Ex Parte response Tab C 2 shows a letter from the Office of the Inspector General, Joint Base Lewis-McChord, dated 6 October 2015, which states in pertinent part, the WRMC IG made the following determinations: (1) Special Compensation Allowance for Activities of Daily Living (SCAADL) – The WRMC IG determined the WTB failed to submit your “appeal” application to the WRMC Warrior Transition Office (WTO) SCAADL certifying official IAW OTSG/MEDCOM Policy 14-039. The WRMC IG has referred to the commander to take action. IAW federal privacy laws, the WRMC IG is not authorized to provide you information into what action the commander will take. Unfortunately, there is no process to retro-award SCAADL; however, the WRMC SCAADL certifying official recommended applying through VA Family Caregivers Program http://www.va.gov/healthbenefits/resources/Caregiver_Eligibility Check.asp if the situation still persists. The website will provide additional information and access to VA Form 10-10CG. (2) Non-Medical Attendant (NMA) - An email dated February 27, 2015, indicates the WTB Surgeon recommended you to submit a request for SCAADL instead of NMA. However, IAW governing regulation a Soldier may receive SCAADL while having a NMA. On March 23, 2015 you submitted a memorandum requesting both SCAADL and NMA. According to the WTB NMA coordinator, your leadership did not route a NMA request packet through their office. The WRMC IG has referred the outcome information to the WTB Commander in order to correct any future administrative error. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 2. The Board reviewed the applicant’s contentions submitted via counsel, the previous ABCMR decision in this case, the 22 January 2020 remand order issued by the United States Court of Federal Claims, the applicant’s filings, via counsel, in the same Court, and the evidence of record. 3. The Board considered the contention that the applicant should have received Special Compensation for Assistance with Activities of Daily Living (SCAADL) from 10 May 2013 until 90 days after retirement. SCAADL payments are authorized through the last day of the month during which a 90-day period ends that begins on the retirement date of the Servicemember – in this case 31 August 2015. The Board determined there was sufficient evidence to grant this portion of the requested relief. The Board noted the 6 October 2015 Inspector General (IG) finding that the Warrior Transition Battalion (WTB) had failed to submit the applicant’s SCAADL appeal application to the Warrior Transition Office (WTO) SCAADL certifying official as required by Office of the Surgeon General / Army Medical Command (MEDCOM) policy. In light of the evidence of record, including contemporaneous medical evidence submitted by the applicant, the Board found a preponderance of evidence supports a finding that, during the relevant period, the applicant was diagnosed and treated for numerous medical conditions that constituted a permanent catastrophic injury or illness. The treatment regimen left the applicant significantly debilitated necessitating her family to care of her and assist with the activities of daily living (ADL). The Board found a preponderance of evidence reflects that, without this assistance, the applicant would have been unable to care for herself and would have required inpatient admission for the majority of her recovery. As such, the Board determined a records correction was warranted to reflect the applicant applied for, was eligible to receive, and was approved for SCAADL payments from 10 May 2013 to 31 August 2015. 4. The Board considered the contention that the applicant should have received Non- Medical Attendant (NMA) benefits from 10 May 2013 to May 2015. The Board noted the 6 October 2015 IG finding that the applicant’s leadership failed to route the NMA request packet through their office and incorrectly informed her to apply for SCAADL instead of NMA even though a Servicemember may receive both benefits simultaneously. In light of the evidence of record, including contemporaneous medical evidence submitted by the applicant, the Board found a preponderance of evidence supports a finding that, during the relevant period, the applicant was seriously ill in the line of duty (LOD) and in need of personal care services because of an inability to perform one or more ADLs. As such, the Board determined a records correction was warranted to reflect the applicant applied for, was eligible to receive, and was approved for a NMA from 10 May 2013 to 30 May 2015. 5. The Board considered the contention that the applicant was owed additional money as a result of the ABCMR’s August 2017 decision granting partial relief in the form of additional active duty time. The applicant’s counsel contends that money for “civilian wages” was improperly deducted from the DFAS payment as well as that the applicant was entitled to travel, lodging, per diem, and other entitlements based on her need to travel expenses related to medical treatment, the Board noted that, while these expenses may ultimately be reimbursable given the previous records correction, without authorization to travel, the applicant could not submit a travel voucher to recoup these costs. Merely directing the payment of money is not correction of an Army record. However, the Board found partial relief in the form of correcting the record to reflect issuance of orders authorizing travel for medical care for the period from 19 April 2012 to 7 July 2014 (the corrected period of active service) was warranted. With this correction, the applicant should be able to submit a claim for travel expenses to the appropriate office. 6. However, the Board finds the applicant has failed to demonstrate that an error or injustice occurred relative to the deduction of civilian wages from the money paid out to the applicant as a result of the ABCMR’s previous records correction. DOD 7000.14-R, volume 16 states that, if an individual is owed money pursuant to records correction, any earnings received from civilian employment, self-employment, or an income protection plan during the period for which active duty pay and allowances are payable must be deducted from the settlement. The Financial Management Regulation is clear that the requirement for deduction it is based on when the civilian earnings are “received,” not necessarily when they are earned. The Board determined that even though the civilian earnings received during the relevant period were for sick and other leave accrued as a result of work performed prior to this period, receipt of these earnings occurred during the time period requiring their deduction from the overall amount paid the applicant for the additional active duty period. 7. With respect to the request for promotion to O-4/Major (MAJ), the ABCMR does not have the authority to correct records to show an officer has been appointed to a certain grade when that officer has not been appointed to that grade by the President, with Senate consent when required (not required in the applicant’s case), or Secretary of Defense. This authority has not been delegated to the service secretaries or their Boards for Correction of Military / Naval Records. The ABCMR – as well as the Deputy Assistant Secretary of the Army (Review Boards) – lacks the authority to promote the applicant to O-4. The Board found she was not promoted to O-4/MAJ prior to her medical retirement. While the applicant was selected for promotion to O-4/MAJ by the Fiscal Year (FY) 2015 Reserve Component (RC) MAJ AMEDD Promotion Selection Board (PSB) prior to retirement, the promotion list was not approved until October 2015, after her 30 May 2015 retirement. Title 10, U.S.C., section 14310(d) provides for administrative removal of an officer on the reserve active-status list (RASL), who is transferred to a retired status after having been recommended for promotion to a higher grade, but before being promoted. The FY 2015 Promotion List memorandum from HRC informed the applicant that officers who separate or retire prior to being promoted will be removed from the promotion list. The Board concurred with the G-1 advisory opinion that, because the applicant was transferred to a retired status prior to the approval of the promotion list, by statutory authority and Army policy, her name was properly administratively removed from the promotion list. Next, because she was not on an approved promotion list prior to the effective date of transfer to the retired list – the applicant retired in May 2015 and the promotion list was not approved until October 2015 – the Board determined the applicant was not eligible for placement on the retired list as an O-4/MAJ based on retirement for disability under Title 10, U.S.C., section 1372 and AR 635-40. Additionally, the administrative errors in the orders prepared as a result of the 2017 ABCMR’s decision do not constitute a defacto promotion to O-4/MAJ. The ABCMR determined the applicant has failed to demonstrate by a preponderance of the evidence she was promoted to O-4/MAJ prior to retirement or otherwise should be placed on the retired list in that grade. 8. The Board considered the contention that the applicant should have been promoted to O-4/MAJ as a ARNG unit vacancy. In addition to the other evidence considered, the Board reviewed the 16 December 2020 memorandum and associated documents submitted in response to a 14 December 2020 memorandum of record prepared by a ABCMR staff member regarding a verbal ex parte communication. The Board makes note of this evidence because it was received on the day this case was reviewed by the Board – through no fault of the applicant – and to inform her the submission from her counsel was considered prior to the Board rendering its decision. The Board finds the applicant has failed to demonstrate by a preponderance of evidence an error or injustice occurred relative to her failure to be promoted via a unit vacancy position. The Board noted the available evidence and OERs reflect that the applicant had not passed an APFT during the relevant period (2013 / 2014) due to her medical injury as required for eligibility for a unit vacancy promotion. She was not recommended by her commander for promotion and was counseled regarding the same. While the applicant was eligible for a unit vacancy promotion prior to her retirement, the Board noted that unit vacancy promotions are not automatic promotions and she was not endorsed by her unit for the promotion. 9. Finally, the Board considered the request that the applicant’s records be referred to a “special standby board” for consideration for promotion to O-4/MAJ at her earliest date of eligibility and any later date. Based on the regulations cited by the applicant’s counsel – AR 600-8-29, chapter 7 – the Board assumes the request is for referral of the records to a special selection board (SSB). The relevant regulation governing SSBs for Reserve Component (RC) officers is AR 135-155. SSBs are convened to reconsider officers who were wrongfully not considered or considered, but not selected by mandatory promotion boards. SSBs do not consider officers for below the zone promotions. Based on her date of rank to Captain (CPT) of 8 June 2009, the Board determined that the FY15 mandatory promotion board with a zone of consideration of CPTs with a date of rank of 31 August 2009 or earlier was the first board in which the applicant fell within the zone of consideration. As reflected by the FY14 RC Board Schedule provided by the applicant, the zone of consideration for that Board was AMEDD CPTs with dates of rank of 31 August 2008 or earlier. In light of her date of rank, the Board determined the applicant is not eligible for referral of her records to a SSB for consideration under an earlier board’s criteria. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 showing the: * applicant is authorized to received Special Compensation for Assistance with Activities of Daily Living (SCAADL) from 10 May 2013 until 90 days’ after retirement. * applicant applied for, and was approved for a NMA from 10 May 2013 to 30 May 2015 and * the applicant is authorized travel and per diem for medical care for the period from 19 April 2012 to 30 May 2015 (includes the corrected period of active service). 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 the: * request for promotion to Major, and placement on the retired list at the rank of MAJ, and; * reimbursement of civilian wages properly deducted from the applicant's active duty pay, for the period 19 April 2012 - 7 July 2014, that she received as a result of the ABCMR’s previous records correction. 12/17/2020 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. //NOTHING FOLLOWS//