IN THE CASE OF: BOARD DATE: 5 November 2021 DOCKET NUMBER: AR20210009764 APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States Court of Federal Claims. The Court directs the ABCMR to reconsider the applicant's request for correction of his records. Specifically, for reconsideration of: .remaining on active duty orders for the period 1 November 2015 – 9 May 2018under an Active Duty Medical Extension (ADME) order while undergoing aMedical Evaluation Board (MEB)/Physical Evaluation Board (PEB) .payment of applicable back pay and allowances .accrual of ordinary leave during the period mentioned above after correction ofhis records APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .U.S. Court of Federal Claims Docket Number 20-XXXC - remand .U.S. Court of Federal Claims Docket Number 20-XXXC amended complaint .memorandum is support of DD Form 149 .DD Form 214 (Certificate of Release or Discharge from Active Duty) serviceending 1 November 2015 .ADME packet .request for redress, Article 138 Uniform Code of Military Justice e-mail .Integrated Disability Evaluation System (IDES) packet .U.S. Court of Federal Claims Docket Number 20-XXXC .U.S. Court of Federal Claims Docket Number 20-XXXC – motion for remand .U.S. Court of Federal Claims Docket Number 20-XXXC – memorandum opinionand order FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200008442 on 19 January 2021. The Board found sufficient evidence to grant a partial relief. Therefore, based on the available evidence, the Board found that because the applicant faced an error and injustice, his Orders Number 347-054, dated 13 December 2014, should be amended to reflect ADME for 3 months and 11 days, the amount of time he would have been held on active duty to complete the DES and be medically retired. These Orders expired on 11 November 2015, but the applicant was released from active duty on 1 November 2015. The Board agreed that the applicant's orders should be extended for 3 months and 11 days from the date they expired. This would extend the applicant's orders from 12 November 2015 to 23 February 2016. Subsequently, he should be paid all back pay, allowances, and leave accrual from 2 November 2015 until 23 February 2016 and his DD Form 214, dated 1 November 2015 should be amended to reflect that he was discharged on 23 February 2016. 2.On remand, the ABCMR shall re-determine and explain when the applicant's "DESprocessing" began, considering, at a minimum: (1) the allegation in the applicant'samended complaint, filed on 8 April 2021, that his DES processing began earlier than29 January 2018; and (2) the provisions of Department of Defense (DOD) Manual1332.18 (DES Manual) Vol. 2 (5 August 2014). In its decision on remand, the ABCMRshall also address any other issues, arguments, or evidence the applicant raises in anywritten submission he makes within 30 days of the date of this Order. The ABCMR shall re-determine and explain whether the applicant's records should be corrected to reflect an ADME of the applicant's 13 December 2014 order beyond 23 February 2016, and, if so, determine and explain the length of any such extension and any other relief the applicant should receive. 3.A review of the applicant's service record shows: a.The applicant enlisted in the Regular Army (RA) on 24 July 2002. b.The applicant's Enlisted Record Brief shows he served in: .Iraq for the period of 16 January through 24 December 2005 .Afghanistan for the period of 12 January 2008 through 3 January 2009 .Afghanistan for the period of 17 March 2010 through 24 February 2011 .Afghanistan for the period of 13 August 2012 through 4 May 2013 c.The applicant reenlisted in the RA on 3 November 2005 and 25 July 2008. d.On 28 February 2013, the applicant signed a declination of continued servicestatement. e.The applicant was extended in the RA on 8 July 2014, at the convenience of thegovernment for medical treatment. f.The applicant enlisted in the Army National Guard of the United States (ARNGUS)on 22 September 2014. g.The applicant was honorably released from active duty on 24 September 2014.DD Form 214 shows the applicant completed 12-years, 2-months, and 1-day of active service. Item 18 (Remarks), shows that the applicant served in: .Iraq for the period of 16 January through 24 December 2005 .Afghanistan for the period of 12 January 2008 through 3 January 2009, 17 March 2010 through 24 February 2011, and 13 August 2012 through 4 May 2013 .signed declination for continued service, DA Form 4991-R (Declination ofContinued Service Statement) h.On 13 December 2014, Orders Number 347-054, issued by Joint ForceHeadquarters (HQs), Alabama Army National Guard (ALARNG), the applicant was ordered to active duty for training effective 16 January 2015 to attend 68A (Biomedical Equipment Specialist) Military Occupational Specialty (MOS) producing course. i.On 19 October 2015, DA Form 2173 (Statement of Medical Examination and DutyStatus) stated the applicant was diagnosed with cervical radiculopathy/mild Traumatic Brain Injury (TBI), closed fracture of fifth cervical vertebral, and cervical spondylosis. These medical conditions began in 2005, while the applicant was deployed in Iraq. He suffered two subsequent falls causing cervical spine injury, swan-neck deformity, and TBI. The applicant had crushed and broken vertebrae without knowing this per his medical records. The applicant aggravated his neck injury while assigned to D Company 264th Medical Battalion in March 2015. Since that time, he had been evaluated for surgery at San Antonio Military Medical Center (SAMMC) (Texas). j.The applicant was honorably released from active duty training on 1 November2015. DD Form 214 shows the applicant completed 9-months and 16-days of active service. k.On 28 February 2018, DA Form 199 (Informal Physical Evaluation Board (PEB)Proceedings) shows that the PEB found the applicant physically unfit for retention and recommended he be placed on the Permanent Disability Retired List (PDRL) with a combined disability rating of 40 percent for the following medical conditions which were incurred or aggravated in the line of duty in a duty status: .cervical strain and degenerative arthritis of the cervical spine rated at 20percent .lumbosacral strain and degenerative arthritis of the lumbar spine rated at 20percent l.On 5 April 2018, Orders Number D 095-34, issued by the U.S. Army PhysicalDisability Agency, the applicant was placed on the PDRL effective 10 May 2018 in the retired rank/grade of staff sergeant (SSG)/E-6 with 40 percent disability. m.On 2 May 2018, Orders Number 122-516, issued by Joint Force HQs ALNG, theapplicant was reassigned to the United States Army Reserve (USAR) Control Group (Retired Reserve) effective 9 May 2018 and placed on the PDRL effective 10 May 2018. n.The applicant was honorably retired on 9 May 2018 for placement on the PDRL.National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows that the applicant completed 3-years, 7-months, and 15-days of service. o.On 15 March 2021, DD Form 215 (Correction to DD Form 214 (Certificate ofRelease or Discharge from Active Duty) was issued as a result of the decision rendered in ABCMR Docket Number AR20200008442. DD Form 215 corrected DD Form 214 with the separation dated of 1 November 2015. Item 12b (Separation Date This Period), 1 November 2015 was deleted and added 23 February 2016. Item 12c (Net Active Service This Period), 9-months and 16-days was deleted and 1-year, 1-month, and 8-days were added. p.The applicant's records are void of a request for an ADME. Likewise, his record is void of any ADME orders. 4.The applicant provides: a.Through the applicant's legal counsel, he amended his complaint stating that theBoard failed to meet its mandate to place the applicant in the same position he would have been in had the injustice or error not occurred. The Board erred by not providing the applicant full relief by correcting his record to show he was continued on active duty for the disability processing until his disability retirement. He seeks monies that he should have received by being continued on active duty from the date of his separation until his retirement. This would be from the date of his erroneous separation on 1 November 2015 through 9 May 2018, minus the time credited from the partial relief previously granted by the Board. The disability processing began when his permanent profile was issued on 30 December 2015, which mandated a referral to the DES and MEB. The Army failed to act to the applicant's request for continuation on active duty by failing to comply with its own regulations. b.Memorandum in support of the applicant's requests that stated he served in theRegular Army for 12-years during which time he deployed to Iraq and Afghanistan totaling 4 times. During the deployments, he sustained injuries that were documented in his medical records. Upon his release from active duty, the applicant enlisted in the ARNG. The ARNG ordered the applicant to active duty for training for 9-months, where he aggravated a prior existing neck and back injury causing him to be unable to complete the training. He was issued a temporary medical profile that stated he was pending an MEB and the permanent medical profile was to be done by the MEB. The applicant submitted a request for continuation on active duty on ADME orders with the recommendation of his commander and medical provider. His request was denied and he was released from active duty on 1 November 2015. Upon returning to his ARNG unit, he repeatedly submitted requests to be placed back on active duty in order to be processed through the DES with no success. On 27 January 2016, the applicant formally requested redress under Article 138, Uniform Code of Military Justice (UCMJ) requesting to be returned to active duty for processing through the DES for final disposition. His request was improperly denied when the chain of command failed to send his request to the General Court-martial Convening Authority as per regulation. The MEB convened on 29 January 2018, finding the applicant physical unfit for retention due to cervical neck strain, degenerative arthritis of the cervical spine, lumbosacral strain, and degenerative arthritis of the lumbar spine. On 29 February 2018, the informal PEB found the applicant physically unfit for retention and recommended he be placed on the PDRL with a combined 40 percent disability. The applicant was retired and placed on the PDRL on 10 May 2018. c.ADME request packet shows the applicant's command recommended approvalfor continuation on active duty for ADME on 21 July 2015 for disability evaluation for an in the line of duty injury that was sustained on active duty and aggravated while the applicant was on active duty for training for over 30-days. The packet is void of evidence it was submitted to the U.S. Army Human Resources Command for approval or disapproval. d.E-mail from second lieutenant (2LT) W-C-, dated 28 January 2016, informing theapplicant that he did not have the authority to place the applicant on ADME orders. 2LT W-C- requested the applicant's patience in order for the process to work in order toreceive final determination on his request. e.IDES packet, dated 29 January 2018, shows the applicant failed to meetretention standards due to cervical strain, degenerative arthritis of the cervical spine, lumbar strain, and degenerative arthritis of the lumbar spine that incurred while the applicant was entitle to base pay. BOARD DISCUSSION: 1.After reviewing the application and all supporting documents, the Board found thatrelief was warranted.2.The Board carefully considered the applicant’s request, evidence in the records andsupporting documents. The Board considered the applicant's statement, his record of service, his medical conditions, the evaluation of those conditions and the reason for his separation. The Board considered the statements regarding requests for ADME, his processing through the Disability Evaluation System and his medical retirement. The Board found evidence supported that the National Guard did not timely facilitate his case and that it was through no fault of his own. The Board found that theapplicant’s contention, that he should have remained on active duty for the duration ofhis IDES, supportable by a preponderance of the evidence, therefore; he should beafforded proper medical redress to include all the benefits appurtenant to an active duty status throughout the entirety of his IDES process. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ABCMR Record of Proceedings (cont) BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by to reflect: •the applicant remained on active duty orders for the period 1 November 2015 –9 May 2018 under an Active Duty Medical Extension order while undergoing aMedical Evaluation Board (MEB)/Physical Evaluation Board (PEB)•payment of applicable back pay and allowances•accrual of ordinary leave during the period mentioned above after correction ofhis records 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. REFERENCES: 1.Army Regulation (AR) 40-501 (Standards of Medical Fitness) in effect at the timestates a.A profile is considered permanent unless a modifier of "T" (temporary) is added as described in b below. A permanent profile may only be awarded or changed by the authority designated in paragraph 7–6. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards by chapter 3. Those Soldiers on active duty who do not meet retention standards must be referred to an MEB as per chapter 3. b.Permanent "3" or "4" profiles require the signatures of 2 profiling officers, one of which is a physician approving authority. 2.AR 40-58 (Warrior Care and Transition Program) in effect at the time states: a.RC Soldiers (Component 2 and 3 not in AGR status) must meet all of the following: (1) The Soldier's medical condition(s) incurred or aggravated in the LOD during an active duty status (contingency or non-contingency) may qualify for evaluation, treatment, and/or disability evaluation processing while in an active duty status; and, b.The Soldier's condition(s) require(s) definitive care. Definitive care is defined as a specific treatment or a sequence of treatments lasting 30-days or more, as determined and appropriately documented by military medical authority. Treatment is expected either to return the Soldier to duty or reach Medical Retention Determination Point and begin the IDES process. This treatment plan will require a major time commitment from the Soldier (for example, three or more medical appointments per week). c.Soldiers who do not meet the specific eligibility criteria stated will remain in their unit and utilize the standard health care system and access-to-care standards. Reserve Component Soldiers on active duty orders specifying a period of more than 30-days will, with their consent, be kept on active duty for disability evaluation until final disposition by the Physical DES (PDES) process. Soldiers in the PDES process will not be automatically assigned or attached to the WTU; they must meet the entry criteria stated for assignment or attachment into the WTU. 3.Title 37 United States Code (USC), section 204 states a member of the NationalGuard, who is participating in full-time training, provided by law is entitled to the basicpay of the pay grade to which assigned, in accordance with their years of servicecomputed under Title 37, USC, section 205. 4. Title 10, USC, section 701 states a member of an Armed Force is entitled to leave at a rate of 2.5 calendar days of each month of active service. A member of the ARNG conducting full-time training for a period more than 29 days is considered active service for this section. 5. Warrior Transition Unit Consolidated (2009) states: a. Paragraph 2-10 RC Soldiers eligible for ADME if they are in a duty status during any period of active duty. Soldier must have incurred or aggravated an in the line of duty service-connected injury while in an individual duty for training or non-mobilization active duty status and that medical care will extend beyond 30 days. A Soldier must be found by military medical authority unable to perform his or her MOS within the confines of a medical profile. A DA Form 3349 will be used to document this determination, and the Soldier must be medically approved by the ADME medical review board to enter the ADME program. b. Paragraph 2-11 RC Not Eligible for ADME Orders when no determination has been made for a LOD investigation or a medical treatment plan will not extend beyond 30 days. 6. Department of Defense Financial Management Regulation section 010201C states creditable service periods for basic pay include active service in the National Guard. 7. Memorandum, Under Secretary of Defense, 30 July 2018, Incorporating Change 2, 19 September 2019, Subject: Directive-Type Memorandum (DTM)-18-004 "Revised Timeliness Goals for the Integrated Disability Evaluation System (IDES)." This DTM provides a 180-day goal for completing IDES processing. 8. Department of Defense Manual (DODM) 1332.18, Volume 2 (Disability Evaluation System (DES) Manual: Integrated Disability Evaluation System (IDES), implements policy, assigns responsibilities, and provides procedures for using the IDES process to refer, evaluate, and return to duty, separate, or retire Service members for disability pursuant to Title 10, USC (Reference (c)). DOD policy in accordance with Reference (b) that the DES must be used for determining fitness for duty as well as determining return to duty, separation, or retirement of Service members because of disability. In accordance with Reference (c), the applicable standards for all determinations related to disability evaluation must be consistently and equitably applied to all Service members, both Active Component (AC) and Reserve Component (RC). Enclosure 7 (IDES Timeliness Goals), 2. AC Overall IDES Process. The goal is for DOD and the Veterans Affairs (VA) to complete 80 percent of cases of AC Service members in no more than 295 days from the date of referral to the IDES to the date of return to duty or notification of the VA benefits decision. 3. RC Overall IDES Process. Because of unique medical documentation and orders requirements, the IDES goal is for DOD and VA to complete 80 percent of cases for RC Service members in no more than 305 days from the time of referral to the DES to the point of return to duty or notification of VA benefits decision. 9. Department of Defense Instruction (DODI) 1332.18 (Disability Evaluation System (DES)), dated 5 August 2014, DOD's objective in all DES processes are to collaborate with the VA to ensure continuity of care, timely processing, and seamless transition of the Service member from DoD to VA in cases of disability separation or retirement. Subparagraph 3h, RC Service members on active duty orders specifying a period of more than 30 days will, with their consent, be kept on active duty for disability evaluation processing until final disposition by the Secretary of the Military Department concerned. 10. DODI 1241.2 (Reserve Component Incapacitation System Management), provide medical and dental care to Reserve component members for an injury, illness, or disease incurred or aggravated in the line of duty, and to authorize physical examinations to determine fitness for duty or disability processing. a. Paragraph 6.6.1 (Medical Evaluation and Other Purposes), a Reserve component member may be ordered to active duty, with the consent of the member, under Title 10,USC, section 12301(h) (reference (b)) when authorized by the Secretary concerned and, in the case of the National Guard, with the consent of the Governor or other appropriate authority of the State concerned, to receive authorized medical care, to be medically evaluated for a disability or other medical purposes as determined by the Secretary concerned, or to complete a required DOD health study, which may include an associated medical evaluation of the member. A Reserve component member may also be retained on active duty under section 12301(h) of reference (b), as determined by the Secretary concerned, for medical treatment associated with the study or evaluation, if the treatment of the member is otherwise authorized by law. b. Paragraph 6.6.3.2, a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a DES determination. //NOTHING FOLLOWS//