BOARD DATE: 20 June 2018 DOCKET NUMBER: AR20160008839 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ___x_____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 June 2018 DOCKET NUMBER: AR20160008839 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records and Army National Guard records of the individual concerned be corrected by: a. revoking Orders NG-272-348A1, dated 27 March 2013; and b. paying her all back pay and allowances Orders NG-272-348 (period ending 30 September 2013) authorized as a result of this correction; c. amending her DD Form 214 for the period ending 3 June 2013 to show a separation date of 30 September 2013; and d. awarding her the appropriate retirements points, as applicable. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to Incapacitation Pay and entry into the Warrior Transition Unit/Battalion. _____________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. BOARD DATE: 20 June 2018 DOCKET NUMBER: AR20160008839 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant’s record to show, in effect – * voiding of Orders NG-272-348A that improperly curtailed her service * she was retained on active duty orders and transferred to the Warrior Transition Battalion (WTB) for medical treatment * payment of all entitlements to include without limitation, pay and allowances, as well as credit for active duty time (retirement points) * reversal of the Army G1 denial of payment of INCAP pay 2. Counsel states, in a 14 page statement summarized below: a. The applicant and counsel verified that she had exhausted all administrative avenues of relief through the Florida Army National Guard (FLARNG), the National Guard Bureau (NGB), and the Regular Army (RA). Evidence of administrative remedies and their denials are referenced within this petition and included as exhibits. b. The applicant initially reported having been a victim of sexual assault to her company commander. She followed up her verbal report to Major (MAJ) R by completing a DD Form 2910 (Victim Reporting Preference Statement) the following day. Forty-three days later, she was informed that she was being released from her active duty orders for misconduct. During the terminal leave she was forced to take, the applicant continued to seek medical treatment at Fort Benning, GA, as well as seek assistance from both the Sexual Assault Response Coordinator (SARC) and Family Assistance Program (FAP). Despite recommendations from both the Chief of the FAP and her behavioral health provider, Ms. DH, that she not be cleared from behavioral health and allowed to be released from active duty (REFRAD), her chain of command ignored those recommendations and released her anyway. c. The applicant's petition for relief from this board stems from three separate, but related issues: 1) the curtailment of her orders was improper; 2) even with the curtailment of her orders, she should have been allowed to seek medical treatment within a WTB and remain on active duty orders until she was fit to return to duty; and 3) the Line of Duty/Incapacitation (INCAP) Pay processes, both initially and during appeal, under applicable regulations were ignored and intentionally circumvented by personnel having influence in the process. d. It is abundantly clear that the applicant's release from her active duty orders was handled incorrectly. The individual who should have been making the ultimate decision on her case, Lieutenant General (LTG) M supports the applicant's request for relief. e. The applicant’s medical records show she should not have been cleared from behavioral health and separated from active duty. The applicant’s service should have continued and ultimately she could have been transferred to the WTB so that mental health treatment could continue. Medical personnel went on to indicate that they would have supported a transfer of the applicant to the WTB. The medical official made it clear that the applicant was not cleared from behavioral health and had a pending command-directed evaluation prior to her separation from active duty. f. Further, even after the improper release of the applicant from active duty, the Florida National Guard; NGB; and Deputy Chief of Staff (DCS), G-1, all failed to properly process her request for INCAP Pay, which, had it been awarded, would have at least minimized the negative impact she suffered as a result of her improper release. g. This board has the authority to grant the relief requested. In Arroyo v. United States, 116 Fed. Cl. 691, the Court of Federal Claims held that when a Reservist is released from active duty wrongfully, whether in violation of the continued active duty rule or otherwise, he can recover active duty pay for the period in which he was entitled to remain on active duty under the constructive service doctrine. In general, a Reservist is entitled to active duty pay only for the period that he is actually on active duty. The constructive service doctrine, however, was designed to permit the award of back pay to a service person who had been injured by the improper termination of his service, and thereby denied the financial and other benefits he should and would have received but for the improper termination. 3. Counsel provides approximately 41 documents summarized in the consideration of evidence below. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Army National Guard (ARNG) on 31 May 2001. She served continuously through multiple reenlistments and extensions in various positions. She is a staff sergeant (SSG/E-6) on Active Duty for Operational Support (ADOS) Reserve Component (RC) orders. 2. NGB Orders NG-272-348, dated 28 September 2012, ordered the applicant to ADOS-RC for 365 days with a report date of 1 October 2012. 3. On 13 February 2013, a Victim Reporting Preference Statement (DA Form 2910) shows the applicant elected the unrestricted reporting option, and reported she was a victim of sexual assault to her command, law enforcement, or other military authorities for investigation of this crime. 4. On 8 March 2013, a Report of Mental Status Evaluation shows a command-directed behavioral health (BH) evaluation noted that the applicant’s mental status was normal, she was deemed fit for full duty, with no obvious impairments, and her behavior was cooperative. It further showed the applicant could understand and participate in administrative proceedings. There were no proposed treatments, and the applicant screened positive for post-traumatic stress disorder (PTSD), with other comments showing the applicant “cannot be discharged at this time.” 5. On 27 March 2013, she signed a DA Form 4187 (Personnel Action) requesting amendment of Orders NG-272-348 to read 3 June 2013. The DA Form 4187 further shows transition dates of 13 April to 3 June 2013, and the reason for amendment was failure to comply with orders given to her by a commissioned officer and senior noncommissioned officer, reporting for duty late, and lack of accountability. It further showed she had been counseled multiple times concerning her habitual pattern of failing to comply with command guidance. 6. NGB Orders NG-272-348A1, dated 27 March 2013, amended the end date of Orders NG-272-348 to 3 June 2013 and the tour length to 246 days. 7. On 5 April 2013, the applicant requested Congressional assistance. Her request states – * due to fact that her command was separating her from active duty (AD) service after she made an unrestricted report of a sexual assault by another Soldier (her husband), she requested Congressional assistance * she had made several unsuccessful attempts to remain on AD or transfer to the Warrior Transition Unit (WTU) * she sought counseling and assistance from various offices at Fort Benning * her company leadership counseled her for being late to work and missing appointments * several counseling statements were falsified or misreported information, and her company leadership coerced her into signing a voluntary request to curtail her AD tour by threatening to do it involuntarily if she did not agree to a voluntary request * she felt as though she was being treated like a criminal and kicked out of the Army * through counseling and therapy she realized how the repeated and systematic sexual abuse had resulted in PTSD 8. The applicant was released from active duty on 3 June 2013. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 4 years, 1 month, and 20 days of net active service this period. 9. On 4 December 2013, in a memorandum from the Office of The Staff Judge Advocate (OTSJA), Fort Benning, GA, to the Chief of Law, OTSJA, Maneuver Center of Excellence (MCOE), Fort Benning, GA, a legal assistance attorney noted that: * the applicant told her command that she would not sign a voluntary DA Form 4187; her command had her sign what they referred to as an involuntary 4187 * per ARNG-HRH Policy Memo (PM) 12-043, a Soldier on ADOS-RC orders may request voluntary early release or the command, when warranted, may give a Soldier an involuntary early release * reasons for release must be detailed in writing, the Soldier must be counseled on the reasons, and the Soldier must be given 15 days to respond in writing to such notification * the processing requirements of the DA Form 4187 include supporting documents detailing the reasons, recommendations of approval or disapproval from each level of ARNG-HCM, and must be referred to a board of three officers before issuing any release paperwork * Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) requires commanders to review such separations to ascertain whether the separation appears to be in retaliation for filing an unrestricted report of sexual assault or if the separation involves a medical condition that is related to the sexual assault, to include PTSD * the General Court-Martial Convening Authority (GCMCA) at a minimum authorizes the release of a Soldier who has filed an unrestricted report of sexual assault * the applicant’s release should have been treated like a separation under AR 635-200, paragraph 14 (Patterns of Misconduct), and therefore she should been have afforded all of her legal rights, such as trial defense services, appeal process (if necessary), and notification/board procedures * it is apparent that the applicant’s DA Form 4187 represents an involuntary early release; however, the legal assistance attorney was told because the DA Form 4187 was signed by the applicant it acts like a voluntary request * because the DA Form 4187 is an involuntary early release, the applicant’s unit and the Army have violated a great deal of her due process * the applicant was still in dire need of medical help and was not cleared for out-processing * the legal assistance attorney attempted to get the applicant back on AD orders and he believes there should have been a line of duty investigation 10. On 14 January 2014, a memorandum from Major General (MG) HRM to Colonel (COL) WEL (Commander, 211th Regiment) pertaining to the release of the applicant from ADOS-RC shows MG HRM noted that: a. A thorough review of all of the documents clearly indicated that the applicant was involuntarily released from duty. The provisions of paragraph 14 of Army National Guard Policy Memorandum 12-043 govern such a release. b. The Policy Memorandum also provides that ARNG-HCM will refer National Guard Soldiers involuntarily released from active duty for misconduct, degree of efficiency, or manner of performance to a board of three officers appointed to consider the recommendation for involuntary release. The board will determine if the Soldier will be released or retained on active duty. It does not appear these provisions were followed with respect to the applicant. c. Clearly, she signed the 27 March 2013 DA Form 4187 under duress and did not do so voluntarily. d. This decision to separate the applicant involuntarily from active duty is aggravated by the fact that she filed an unrestricted complaint of sexual assault with her command on 12 February 2013. It seems apparent that her chain of command ignored the clear provisions of AR 635-200. AR 635-200 provides much greater due process rights for Soldiers known by their command to have filed an unrestricted report of sexual assault. Paragraph 1-15(d) requires commanders to review such proposed separations to determine whether the separation is in retaliation or involves a medical condition that is related to the sexual assault, to include PTSD. e. More importantly, paragraph 1-19(n) requires at least the approval of the GCMCA for separation of such a Soldier. Since the applicant's separation was not voluntary, it should have been processed under the provisions of AR 635-200. She would have had the right to formal notification, the assistance of counsel from the U.S. Army Trial Defense Service, and final review by the MCOE Commander as the GCMCA. In conclusion, the Commanding General requested a review of the facts and circumstances. 11. On 19 February 2014, a memorandum from COL WEL to MG HRM stated that in support of the applicant, the 211th Regiment initiated a line of duty investigation regarding the sexual assault unrestricted report filed by the applicant. The Regiment offered behavioral health specialist care, family support resources, and maintained open lines of communication with the applicant and her attorney. The memorandum further showed that COL WEL was not able to accomplish the MG’s request to conduct an independent investigation regarding the release of the applicant as the Soldier was in a Title 10, USC, status outside of his jurisdiction. 12. A sworn statement dated 1 May 2014 made by the applicant’s commander at the time, MAJ JJR, shows – * he was the applicant’s company commander for approximately 2 years when she was assigned to the Warrior Training Center (WTC), Fort Benning, GA * WTC leadership saw potential in the applicant and tried to support her in every way * leadership tried to work with her through counseling to correct her behavior and retain her * the applicant performed well when she was executing her duties * the issue was her inability to arrive on time to her appointed place of duty * the applicant was never prevented from making appointments * the applicant willingly signed the DA Form 4187 * she was told her performance and behavior could potentially lead to a field grade Article 15 if it continued * the applicant’s REFRAD was in no way related to her assault claim; it was solely based on her failure to comply * following her company grade Article 15, approximately 5 days later, the applicant failed to show up on time again, which began the REFRAD process * it was later that day she first reported the assault * his first sergeant (1SG) at the time, 1SG EC, was involved in every aspect of this process 13. A copy of an undated email from the Pennsylvania National Guard Assistant Adjutant General, Brigadier General GMS, indicated that a meeting took place and it was determined that bringing the applicant back on ADOS duty would not best serve the MCOE, ARNG, or the applicant. It further shows that it was determined the applicant should continue to seek services (if she chose) through FAP as a dependent. The letter signed by the Commanding General and 211th Regimental Commander was the result of a procedural process, and they would work together to ensure that any future issues going to the Commanding General involving Guardsmen would first go to the Pennsylvania National Guard Assistant Adjutant General. 14. On 11 July 2014, Chief, Personnel Division, NGB, approved an in line of duty finding for PTSD incurred during ADOS-RC. 15. The applicant’s record contains multiple DA Forms 7574-1 (Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty) that request INCAP Pay for PTSD from June 2013 to July 2014. 16. On 19 August 2014, a Florida Army National Guard (FLARNG) Incapacitation Board Summary shows an INCAP Board convened and recommended disapproval for INCAP Pay benefits requested from 4 June 2013 through 31 July 2014. The summary further stated the applicant had not demonstrated loss of civilian wages and she was present for duty during periods covered by the claim. 17. A memorandum for record, dated 4 September 2014, from the Commander, Headquarters, 211th Regiment, subject: Drill Attendance [Applicant], shows that based on the unrestricted line of duty approved on 11 July 2014 and findings of the medical evaluation, he directed the change of authorized absence to medical absence in December 2013, January 2014 and February 2014. Based on this information, the commander recommended INCAP Pay for those periods. He further stated the applicant had shown improvement in her work performance. She had returned to being a productive member of the unit and was performing to standard. She continued to seek a transfer to the U.S. Army Reserve (USAR) and had an authorized release. 18. On 29 September 2014, the applicant’s counsel filed an appeal of the FLARNG INCAP Board’s recommendation. The appeal shows: a. The board was convened in violation of AR 135-381 (Incapacitation of Reserve Component Soldiers), which states "[a] commissioned officer in the rank of major (grade O-4) or above [is] to serve as president (may not be an officer of the Army Medical Corps or Judge Advocate General's Corps)." In this case, the board president was the Deputy State Surgeon. It was their contention that the prohibition of an officer in the Medical Corps did not strictly apply to those personnel holding an M.D., and that allowing the Deputy State Surgeon to serve as the board president allowed the president to potentially improperly influence the other board members. b. The board recommended disapproval because the applicant did not furnish evidence of lost civilian wages. The reliance on lack of evidence regarding loss of civilian wages was erroneous in two respects: (1) AR 135-381, paragraph 1-13, states Soldiers are entitled to a portion of the same monthly pay for each period the Soldier is unable to perform military duties (Tier 1 cases) or can demonstrate loss of compensation from civilian earned income (Tier 2 cases) (emphasis added). Each evaluation (reflected on DA Form 7574-1) submitted by the applicant for the periods covered indicated she was unfit for military duty therefore qualifying her as a Tier 1 case under paragraph 1-13. No evidence was shown by the board to rebut the findings of the provider. (2) The applicant had been on extended ADOS orders working at the WTC at Fort Benning, GA, for approximately three and one half years. She was never asked to furnish any evidence of lost civilian income prior to the board. Her only job during this time was full-time military. c. The board's notation that the Soldier was present for duty is not relevant. The applicant attended drill because she is required to do so as a Soldier and likely would have been separated or court-martialed had she failed to appear at drill. Her commander knew she was not fit for duty. d. Counsel requested that the findings of the board be dismissed and a new board convened that follows the requirements of AR 135-381. Further, the board should consider each of the DA Forms 7574-1 submitted showing the applicant was not fit to perform military duty, and would therefore be qualified for Tier 1 benefits under paragraph 1-13 of AR 135-381. In the alternative, and without conceding the necessity of showing lost civilian income, counsel requested the applicant be given an opportunity to present evidence of prior civilian wages to allow a fair determination of what her civilian wages could have been had she not suffered this injury while on active duty. 19. A copy of an email dated 2 October 2014 from COL EWL, Commander, 211th Regiment, to the applicant’s counsel indicated that the board approved INCAP Pay for drill periods the applicant was coded as medically unfit for duty, and the real progress needed to be made on the Title 10 side. 20. On 27 March 2015, a memorandum appealing the 19 August 2014 FLARNG INCAP Board findings from the applicant’s counsel to the Chief, NGB, Arlington, VA, noted that: a. On 2 October 2014, the applicant's commander, COL EWL, notified the applicant’s counsel through email that the board approved INCAP Pay for drill periods she was coded as medically unfit for duty. As a result of that, the applicant was paid for the months of December 2013, January 2014, and February 2014. Neither the Florida Office of the State Surgeon nor anyone else within the FLARNG ever made any official response to the 29 September 2014 memorandum. b. In accordance with (IAW) Department of the Army (DA) Pamphlet (PAM) 135-381, paragraph 3-12, the applicant appealed the findings of the INCAP Board held on 19 August 2014, which recommended disapproval for INCAP Pay, as well as the subsequent decision of the Florida National Guard to process INCAP Pay for 3 months only. c. The board was convened in violation of AR 135-381, paragraph 3-3, and DA PAM 135-381, paragraph 3-3, both of which state that the board president must be an officer in the rank of major (04) or above and may not be an officer of the Army Medical Corps. In this case, the board president was the Deputy State Surgeon. It was their contention that the prohibition of an officer in the Medical Corps does not strictly apply to those personnel holding an M.D., and that allowing the Deputy State Surgeon to serve as the board president allowed the president to potentially improperly influence the other board members. Counsel further pointed out deficiencies mentioned in the 29 September 2014 appeal to the FLARNG. d. Her commander indicated in a 4 September 2014 memorandum that he encouraged her to attend drills in order to evaluate her well-being and gain updates. Her commander knew she was not fit for duty, and there was no evidence presented to the board to contradict that finding. The applicant requested the following: (1) That the findings of the board be vacated and a determination be made that the applicant is entitled to Tier 1 benefits of full pay and allowances in accordance with applicable law and regulations. (2) That the applicant's case be approved for benefits extending beyond six months IAW AR 135-381, paragraph 2-3d(8), for the full time period covered by the collection of DA Forms 2173 (Statement of Medical Examination and Duty Status). 21. On 30 April 2015, a memorandum from the Chief, Personnel Division, NGB, Arlington, VA, to the Office of the DCS, G-1, Compensation and Entitlement Division, Washington, DC, shows the NGB forwarded the appeal request and recommended disapproval for INCAP Pay benefits for loss of civilian wages. The applicant failed to demonstrate a loss of civilian wages IAW AR 135-38, para 1-9 and 37 USC 204(h), and Department of Defense Instruction (DODI) 7000.14-R Volume 7A, table 57-3. In addition, the NGB recommended disapproval because the applicant was present for duty during the periods requested. 22. On 1 June 2015, an email from the Office of the DCS, G-1, Compensation and Entitlement Division, to the applicant’s counsel shows the approving official approved the applicant’s request for INCAP Pay from 4 June 2013 to 31 July 2014. The applicant was paid for December 2013, January 2014, and February 2014. Those 3 months were removed from the approval period, and the approval authority attached a memorandum to the NGB for payment. The memorandum stated: a. Based on the information supplied by NGB and the appeal memo dated 19 August 2014, the applicant was approved to receive Tier I (Full Pay and Allowances) INCAP Pay for the periods of 4 June 2013 - 30 November 2013 and 1 March 2014 - 31 July 2014. The applicant received INCAP Pay for December 2013, January 2014, and February 2014. b. On 19 August 2014, the applicant appealed the findings of the INCAP Board held on 19 August 2014, which recommended disapproval for INCAP Pay, as well as the subsequent decision of the Florida National Guard to process INCAP Pay for 3 months. However, she was paid for the following months: December 2013, January 2014, and February 2014. c. From 4 June 2013 to 31 July 2014, she filed monthly DA Forms 7574-1 on time with her Florida National Guard unit administrator. The approving authority read each DA Form 7574-1 (4 June 2013 to 31 July 2014), and each physician made a selection that the applicant was not fit for military duty and was not fit to perform civilian duties. 23. An Office of the DCS, G-1, Washington, DC, memorandum, dated 15 June 2015, subject: Decision Regarding [Applicant’s] INCAP Pay, stated: a. Based on information supplied by NGB, the applicant's appeal request, dated 27 March 2015 was denied for the following reasons: (1) Originally, the applicant's INCAP claims were approved (June 2015); however, LTC H, Deputy State Surgeon (FLARNG) presented his concerns and issues to Mr. L (Chief, Compensation and Entitlements Division, DCS, G-1) regarding the matter. (2) DA Form 7574-1 (Military Physician's Statement of Soldier's Incapacitation Fitness for Duty) is required by all Soldiers and must be signed by a medical doctor or doctor of osteopathic medicine in order to finalize the incapacitation checklist. The signatures on block 10(d) and 10(h) located on the applicant’s DA Forms 7574-1 are signed by a Medical Services Corps officer or licensed clinical social worker; therefore, the signed forms were invalid under requirements of AR 135-386. b. The case was thoroughly reviewed by the Compensation and Entitlements Division. 24. On 18 June 2015, by email to the Deputy State Surgeon, FLARNG, counsel requested the status of the applicant’s INCAP Pay. The Deputy State Surgeon was unaware of the approval and indicated there was no memorandum approving INCAP Pay in the appropriate module. 25. On 19 June 2015, a copy of an email from the applicant’s counsel to the Chief, Line of Duty/Incapacitation Pay, NGB, Arlington, VA, shows counsel was able to gain access to the line of duty module, but did not see the memorandum approving the applicant’s INCAP Pay. The NGB official indicated the case was still pending action with the Office of the DCS, G-1, and when the case was returned to her level she would be able to confirm that there was a memorandum. 26. A memorandum for record, dated 29 June 2015, from the Commander, Headquarters, 211th Regiment, subject: Drill Attendance [Applicant], shows the applicant returned to traditional Guard duty at the 211th Regiment in June 2013 after she was released early from Title 10 ADOS orders at the WTC, Fort Benning, GA. The applicant immediately claimed herself a victim of sexual assault while on Title 10 orders. As her commander, he felt it was essential to strongly encourage her attendance at drill so the FLARNG could offer assistance and encouragement. He had no other authorized means of placing her in an official duty status for the purpose of health and welfare evaluations. During the months the applicant was able to attend drills (July 2013, August 2013, November 2013, and April to June 2014), the Regiment allowed her time to complete behavioral health and other appointments. 27. On 17 August 2015, the applicant’s counsel requested assistance with the appeal of INCAP Pay for the applicant. The email to LTG M (the DCS, G-1) described the details and timeline of previous appeals mentioned above in these proceedings. He also stated that he was attempting to do things in the right way, and his client was continuing to suffer financial hardship. He requested a definitive status update that he could provide to the applicant and a copy of the decision. Additionally, counsel requested to know if the Office of The Judge Advocate General was asked to provide a legal review. 28. A DCS, G-1, memorandum, dated 1 September 2015, subject: Request Regarding INCAP Pay for [Applicant], states: a. This responds to counsel’s 17 August 2015 email regarding his client, and her INCAP Pay appeal. Her request for INCAP Pay followed her REFRAD on 3 June 2013. On 19 August 2014, the INCAP Board recommended disapproval of INCAP, and she appealed to the DCS, G-1, on 27 March 2015. Her INCAP appeal was denied on 15 June 2015. b. The DCS, G-1, had reviewed the email and determined the 15 June 2015 denial was appropriate and consistent with the provisions of AR 135-381 dated 27 December 2006. There was no provision for subsequent appeals. c. Counsel additionally requested information regarding a memorandum from Mr. LL and whether the Office of The Judge Advocate General conducted a legal review, but such internal deliberative documents were not releasable. d. If the applicant felt her REFRAD in June 2013 was in error or unjust, she could submit a request to the Army Board for Correction of Military Records (ABCMR). 29. A copy of an email dated 15 October 2015 from the applicant’s counsel to General FJG, Chief, NGB, shows he requested assistance with the INCAP Pay appeal and attached a lengthy memorandum describing what had transpired in the applicant’s case. 30. On 15 March 2016, Mr. GSO, NGB, by e-mail to the applicant’s counsel, responded to the email sent to General FJG and stated that – * he was asked to respond to the applicant’s counsel * the ARNG was directed to review the matter and provide courses of action * all concerns were to be communicated to the DCS, G-1 * significant remedial measures would be implemented to address any actual or perceived shortfalls in the processing of INCAP cases * the applicant’s case was closed and the applicant could pursue other avenues to obtain relief, such as the ABCMR 31. On 8 April 2016, LTG HRM provided a memorandum to the ABCMR wherein he stated: a. He served as the commander, MCOE, Fort Benning, GA, from June 2012 to July 2014. As such, he was the GCMCA over the applicant at the time of her REFRAD in 2013. b. The applicant was processed for release despite the failure to refer her case to a board of officers. She was serving on ADOS-RC orders under the provisions of Title 10, United States Code (USC), Section 12301(d). Army National Guard (ARNG) Policy Memorandum 12-043 required that any Soldier facing involuntary release for misconduct, degree of efficiency, or manner of performance be referred to a board and that decision be reviewed by ARNG-HCM prior to receiving involuntary release orders. This did not occur in the applicant's case. c. He further indicated it does not appear the applicant’s proposed separation was properly reviewed by her chain-of-command as required by AR 635-200. On 13 February 2013, she filed an unrestricted report of sexual assault and completed DA Form 2910. AR 635-200, paragraph 1-15(d), required her commander to review her proposed separation to ensure that it was not made as retaliation for filing a sexual assault report. This review was not completed. d. AR 635-200, paragraph 1-19 (n), reserves separation authority to the GCMCA for all cases involving any Soldier who has filed an unrestricted report of sexual assault within 24 months of initiation of the separation. He was the GCMCA at the time of the applicant's separation and her case was never presented to him for approval. e. The applicant was sent for a command-directed mental health evaluation. Despite a diagnosis of post-traumatic stress syndrome stemming from her sexual assault, his understanding is that she was never cleared for release from the medical personnel at Fort Benning, GA. It likely would have been more appropriate to transfer her to a WTU in accordance with her request for continued treatment rather than release her from active duty. f. Based on his understanding of the facts, when he was the Fort Benning GCMCA, he would have supported her request to be transferred to the WTU. Although her command may have had legitimate concerns about the applicant, it would have been appropriate for medical personnel to determine the nature and extent of her medical condition. However, it is his opinion that the procedural gaps in the review of the applicant's case led to this course of action not being considered. g. He is aware that the applicant is requesting ABCMR provide equitable relief in the form of full pay and entitlements from the time of her release from active duty (3 June 2013) through the date through which she had requested Incapacitation Pay (July 2014) following the finding that she is unfit for military duty. Based on his understanding of the facts, he supports her request. 32. On 25 July 2017, the applicant was provided a copy of military police reports from the U.S. Army Criminal Investigation Command (USACIC), Quantico, VA. Counsel responded and noted that: a. USACIC made no comments regarding the contents of the documents they provided to the ABCMR. Further, it appears from the face of the letter included with those documents that USACIC was responding to a "request for release of information" rather than any specific request for an opinion as to the contents of that information. b. The documents provided by USACIC appear to contain the reports of seven separate incidents. Counsel will address each of those seven in turn. While counsel will address each incident, the response to those documents is not a concession that the documents or the incidents are relevant to the petition for relief filed by counsel. c. The last document included in USACIC's response is the only document that is directly relevant to the applicant’s request for relief from this board. While all sexual assaults are serious matters, they are not all equal. This document details the background on the applicant’s report of sexual assault as well as the Russell County Sheriff’s Office's investigation. Mr. L was charged with a violation of Alabama Code §13A-6-65. 1, sexual torture. d. The report also indicates that these incidents occurred over a period from June of 2011 through March of 2013. These incidents were not solitary confined incidents. It was a prolonged series of criminal acts that qualified as sexual torture that ultimately led to the applicant’s diagnosis of PTSD. 33. In the processing of this case, the ARBA medical staff provided an advisory opinion. The senior medical advisor stated: a. A review of the applicant's electronic medical record (AHLTA) revealed clinical encounters from September 2003 through July 2017 (era of service and request thru 2014). Clinical notes were reviewed from May 2004 through November 2016. Radiology reports were reviewed from April 2004 through August 2016. Laboratory results were reviewed from February 2003 through June 2017. Prescriptions were reviewed from February 2003 through August 2017. The applicant's military personnel records were also reviewed. b. A limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer showed 73 problems listed (all military diagnoses with no VA diagnoses). There are no VA medical or other encounters found. The applicant is not VA service connected. c. The medical advisor was asked: (1) Does the available record reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's active military service (thru 2014)? He stated yes – depression/anxiety and possibly chronic PTSD from 30 April 2013. Comprehensive neuropsychological testing results or summary was not found in available records. The applicant was briefly treated for presumed attention deficit/hyperactivity disorder (ADHD) with amphetamines starting in September 2013 and anxiety/depression starting in December 2013. (2) Did this condition(s) fail medical retention standards IAW Army Regulation (AR) 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? He stated no, the applicant met medical retention standards. She was treated for presumed ADHD with amphetamines starting in September 2013 through late summer 2014 with no interval treatment until restarted spring 2015 through the present. She was treated for anxiety/depression with an antidepressant starting in December 2013 through spring 2014 with no interval treatment until a medication restart in winter 2016 through present. d. The applicant met medical retention standards for anxiety/depression symptoms and/or possible chronic PTSD IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. e. The applicant's medical conditions were duly considered during medical separation processing. As of the 8 March 2013, the DA Form 3822 noted that the applicant could not be discharged at this time. Chronic PTSD was ruled out and she had a history of depression. Subsequent neuropsychological testing was performed on 30 April 2013; however, the results were not found in available records. The majority of behavioral health diagnoses and encounters prior to the 3 June 2013 separation date were for adjustment disorder or an episodic mood disorder and not chronic PTSD. f. The available medical records did not support the applicant's premise that transfer to the WTU was indicated for full-time behavioral health case management and treatment. g. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant clearly had a history of recurrent depression, anxiety, reported sexual assault(s), and a mental status evaluation suggestive of chronic PTSD (likely a combination of childhood psychosocial trauma, multiple marriages, and alleged spousal sexual abuse) with the differential diagnosis including likely borderline and/or some antisocial personality traits. h. The ARBA medical advisor opined that the incapacitation assessment from 4 June 2013 through 30 June 2014 revealed no clear medical or behavioral basis incapacitation (not fit for duty) from June 2013 through July 2014. The applicant had an acceptable Noncommissioned Officer Evaluation Report (NCOER) for that period (8 of 12 months), attended 2 multi-day medical training courses in March 2014, and attended a service school (Advanced Leader Course) in July 2014. Based on the available medical and administrative documentation, there is some evidence in support of behavioral health symptom exacerbation between December 2013 and February 2014 based on the initiation of a brief treatment period with antidepressant medications (December 2013 through spring 2014). Retrospectively, there is insufficient medical documentation available to determine whether the symptoms at that time were or were not incapacitating for military duty. 34. On 11 August 2017, the applicant was provided a copy of the Army Review Board Agency (ARBA) medical advisory opinion. Counsel responded to the advisory and noted that: a. It appears that this Board requested specifically a review of the case file for alleged medical conditions(s) warranted separation through medical channels or medical condition(s) not considered during medical separation processing. The applicant's first response to this is that those two issues improperly narrow the focus of the medical advisor's opinion. At no time did the applicant allege that she should have been separated through medical channels. b. The medical advisor determined that the applicant 's medical conditions were duly considered during medical separation processing. The applicant was not medically separated. The medical advisor may be using that term in a context other than an actual medical separation, but the applicant was separated from active duty as a direct result of alleged misconduct as was clearly shown on her DA Form 4187. c. There is no evidence that the applicant's command properly considered her medical conditions at the time of her REFRAD. LTG M indicated that the MCOE at Fort Benning, GA, failed to follow multiple policies and regulations governing the release of the applicant. These include taking into consideration her report of sexual assault as well as her medical conditions. The applicant, having been on orders for more than 30 days, should have been continued on active duty in accordance with DoDI 1241.2, paragraph 6.6.3.2, which states 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 Disability Evaluation System (DES) determination. The applicant's providers specifically stated that she was not cleared for discharge based on the PTSD diagnosis. Even the medical advisor acknowledged this comment, but appears to give it no weight. d. The medical advisor references the applicant's appeal that was denied because her DA Form 7574-1 was not signed by an MD or DO and references AR 135-386. The medical advisor does not reference the subsequent DA Forms 7574-1 that were signed by Dr. ARP, an MD. The medical advisor also does not reference DoDI 6490.04, which allows for a number of individuals other than physicians to make psychological fitness determinations. e. Counsel would like to stress that the applicant’s request for INCAP Pay is the only such request that the Florida National Guard denied for that reason from 2012 up to and including 2015. The applicant was treated differently and counsel attached those documents supporting his contentions. f. The medical advisor repeatedly refers to the applicant's condition as possible chronic PTSD. Counsel understands that the medical advisor is tasked with reviewing records and not evaluating a patient; however, the medical advisor appears to give no weight to the fact that the providers who wrote the reports and made the actual diagnosis of chronic PTSD did evaluate the applicant at the time they made the diagnosis. They had the benefit of interacting with an individual who was suffering tremendously at the time having been a victim of sexual torture by an individual she should have been able to trust above anyone else. The simple fact of the matter is that we urge this board to take that into consideration when considering the medical advisor's opinions based on limited facts. g. The medical advisor concurs that the records support the diagnosis of PTSD for the applicant. Nothing in the medical advisor’s opinion contradicts the applicant's contention that she should have been allowed to transfer to a WTU in lieu of REFRAD. The medical advisor indicates that the applicant met medical retention standards. She has never argued that she did not meet retention standards, only that she should have been allowed to continue receiving treatment for her condition rather than being subject to an improper REFRAD. h. The medical advisor seems to completely disregard the applicant's provider's clear statement that she "cannot be discharged at this time," despite the fact that the medical advisor quotes it. The only medical records available have a provider, who was able to actually evaluate the applicant as a patient, contemporaneously with her symptoms, clearly stating that the applicant should not be discharged. Given the options available at the time, it would seem that the only logical, reasonable option would have been to transfer the applicant to a WTU. i. The final paragraph discusses the most salient issue in the applicant's request for relief from this board. First, the medical advisor indicates there is no clear basis for the incapacitation; that does not mean there is no basis. In the medical advisor's case, you have a medical professional looking at paper three to four years after the time these symptoms were present, someone who has never met, spoken with, or evaluated the applicant as a patient. That is contradicted by the original DA 7574-1s that were completed by someone who had actually spoken with the applicant. Further, the applicant’s physician, Dr. P____, who had also spoken with and evaluated the applicant as a patient, also found that she was unfit for duty. j. The applicant’s line of duty investigation was repeatedly delayed and wasn't completed in the time frame required. Had her line of duty investigation been completed, the applicant would have been able to document her issues through medical providers and would have been protected when she was unable to participate in drills and schooling. k. Counsel requests this board disregard both of the advisory opinions to the extent that they contain documents that are irrelevant to the applicant's request and question the diagnosis and determination of medical providers who had the benefit of actually evaluating the applicant as a patient. Nothing in either of these two opinions changes the three issues the applicant raised in her request for relief: 1) that the curtailment of her orders was improper; 2) that even with the curtailment of her orders, she should have been allowed to seek medical treatment within a WTU and remain on active duty orders until she was fit to return to duty; and 3) that the line of duty and INCAP Pay processes, both initially and during appeal, under applicable regulations were ignored and intentionally circumvented by personnel having influence in the process. 35. In support of this case counsel provided more than approximately 650 additional documents that consists of: * Affidavit of DL * Petition to reinstate driving privileges * Appeal of Transitional Compensation Decision of FAP * Award of Transitional Compensation * DA Forms 7574-1 from the State of Florida * INCAP Board Summaries from the State of Florida REFERENCES: 1. AR 135-381 prescribes policies and implements statutory authorities regarding incapacitation pay and allowance and reviews requirements on these entitlements for Reserve Component (RC) Soldiers. It further states in: a. Paragraph 1-9 states that members able to perform military duties, but demonstrating a loss of earned income as a result of an in-the-line-of-duty incapacitation, will be compensated for lost earned civilian income. The compensation under this provision will be the lesser of the amount of demonstrated lost civilian income in the amount not to exceed military pay and allowances for which the member would be entitled if serving on active duty. Members will be compensated for loss of earned civilian income in accordance with 37 USC 204(h) and DOD 7000.14–R, Volume 7A, table 57–3. b. Paragraph 1-13 states that Soldiers are entitled to a portion of the same monthly pay and allowances as are provided members of the Active Army with corresponding grade, length of service, marital status, and dependent status for each period the Soldier is unable to perform military duties (tier 1 cases) or can demonstrate loss of compensation from civilian earned income (tier 2 cases). Maximum amount payable for any given period is an amount equivalent to military pay and allowances for the period in question. Eligibility for incapacitation pay is determined case by case and depends on whether a Soldier is unable to perform military duties or demonstrates a loss of civilian earned income. c. Chapter 3 states the incapacitation review board makes determinations concerning a Soldier’s loss of nonmilitary earned income. Membership will consist of a minimum of three voting members, a recorder, and other advisory personnel if available, as follows – * A commissioned officer in the rank of major (grade 0–4) or above to serve as president (may not be an officer of the Army Medical Corps or Judge Advocate General’s Corps) * A commissioned officer of the Army Medical Corps (voting member). * Other voting members (military or civilian) as determined by the commander * A commissioned officer of the Judge Advocate General’s Corps to serve as legal advisor (nonvoting member) * A recorder (nonvoting member) 2. Title 37 United States Code section 204(h), states: a. A member of a reserve component of a uniformed service who is physically able to perform his military duties, is entitled, upon request, to a portion of the monthly pay and allowances provided by law or regulation for a member of a regular component of a uniformed service of corresponding grade and length of service for each month for which the member demonstrates a loss of earned income from nonmilitary employment or self-employment as a result of an injury, illness, or disease incurred or aggravated in line of duty while performing active duty. b. The monthly entitlement may not exceed the member's demonstrated loss of earned income from nonmilitary or self-employment. In calculating such loss of income, income from an income protection plan, vacation pay, or sick leave which the member elects to receive shall be considered. c. Pay and allowances may not be paid for a period of more than six months. The Secretary/approving authority concerned may extend such period in any case if the Secretary/approving authority determines that it is in the interests of fairness and equity to do so. 3. DOD 7000.14–R, Volume 7A, table 57–3, prescribes, if a member is physically disabled in line of duty and the member is: a. Not fit for military duty, inactive duty training (IDT) compensation for the day (both periods if two had been scheduled). If the disability continues beyond this period, or if there is a subsequent recurrence of this disability, entitlement exists to pay and allowances, less the full amount of all civilian earned income received for the disability period, for not more than a total of 6 months. b. Fit for duty and can show lost civilian income, IDT compensation for the day (both periods if two had been scheduled). Thereafter, the member is entitled, upon request, to a portion of pay and allowances in an amount equal to lost civilian earned income or full pay and allowances, whichever is less, for not more than a total of 6 months. c. Fit for duty and cannot show lost civilian income, IDT compensation for the day (both periods if two had been scheduled). 4. Army National Guard (ARNG) Policy Memorandum #12-043 states that a Soldier on ADOS-RC orders may request voluntary early release or the command, when warranted, may give a Soldier an involuntary early release. Both processes use the DA Form 4187. Under a voluntary early release, the Soldier need only forward a completed 4187 detailing the reasons for the request through ARNG-HCM (Human Capital Management) to the appropriate approval authority. Under an involuntary early release, however, sponsors will notify the Soldier of recommendation. Reasons for release will be in writing and sponsor must counsel the Soldier before release. Sponsor will forward DA Form 4187 along with supporting documents detailing the reason for early release, and for those separations where the Soldier’s conduct, degree of efficiency, or manner of performance is seriously deficient it must be referred to a board of three officers before issuing any release paperwork. 5. Title 10 United States Code section 12301, states at any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned. 6. Title 10 United States Code section 12323, states In the case of a member of a reserve component who is the alleged victim of sexual assault committed while on active duty and who is expected to be released from active duty before the determination is made regarding whether the member was assaulted while in the line of duty (in this section referred to as a “line of duty determination”), the Secretary concerned, upon the request of the member, may order the member to be retained on active duty until completion of the line of duty determination. A member eligible for continuation on active duty under this subsection shall be informed as soon as practicable after the alleged assault of the option to request continuation on active duty under this subsection. In the case of a member of a reserve component not on active duty who is the alleged victim of a sexual assault that occurred while the member was on active duty and when the line of duty determination is not completed, the Secretary concerned, upon the request of the member, may order the member to active duty for such time as necessary for completion of the line of duty determination. 7. Warrior Transition Unit Consolidated Guidance (Administrative) prescribes the policy and procedures for the administration of Soldiers assigned/attached to Warrior Transition Units. It further states: a. The Medical Retention Processing (MRP) program is designed to compassionately evaluate and treat the RC warriors-in-transition (WT) with an “in the line of duty” incurred illness, injury, disease or an aggravated pre-existing medical condition which prevent them from performing the duties required by their MOS and/or position. To, as soon as possible, return Soldiers back to duty within their respective RC. If a return to duty is not possible, process the WT through the Army Physical Disability Evaluation System (PDES). b. This program applies to outpatient and in-patient WT currently on active duty mobilized under 10 USC 12302 partial mobilization orders for operations in support of the Global War on Terrorism (GWOT). Soldiers on active duty in support of GWOT under another authority will be handled on a case-by-case basis. c. RC components mobilized in support of GWOT are authorized continuing care in AD status. Once a medical authority determines that the Soldier will not be able to perform military duties in that status, or that the Soldier will not have sufficient number of days left on active duty (AD) after the medical condition improves to permit return to duty (RTD), the RC WT may be eligible for MRP. d. Military medical authority must determine a Soldier is not expected to RTD within 60 days from the time he or she is injured or becomes ill or if the Soldier could RTD within 60 days, but will have fewer than 120 days beyond the expected RTD date left on 10 USC 12302 partial mobilization order, then the Soldier will be converted from partial mobilization orders to MRP 12301(h) orders, subject to the Soldier’s consent. DISCUSSION: 1. The evidence of record shows the FLARNG, the NGB, and DCS G-1 reviewed and denied the applicant’s initial request for INCAP Pay and all subsequent appeals. In addition, the ARBA medical advisor opined that no clear medical or behavioral basis was found for incapacitation (not fit for duty) from June 2013 through July 2014. Furthermore, the applicant showed no loss of civilian income, therefore, she is not entitled to INCAP Pay. The applicant had an acceptable NCOER for that period (supporting a conclusion she was fit for duty), attended 2 multi-day medical training courses in March 2014, and attended a service school (Advanced Leaders Course) in July 2014. 2. The ARBA medical advisor also determined that, based on the available medical and administrative documentation, there is some evidence in support of behavioral health symptom exacerbation between December 2013 and February 2014 based on the initiation and a brief treatment period with antidepressant medications (December 2013 thru Spring 2014). Retrospectively, there was insufficient medical documentation available to determine whether the symptoms at that time were or were not incapacitating for military duty. 3. With respect to the WTU, the ARBA medical advisor found that the available medical records do not support the applicant's premise that transfer to the WTU was indicated for full-time behavioral health case management and treatment. The applicant met medical retention standards, and even with LTG HRM’s endorsement, she would have had to have met the requirements and criteria for entry into the WTU. 4. From a behavioral health standpoint, a Report of Mental Status Evaluation shows the applicant was deemed fit for duty and deployment. The applicant intermittently saw behavioral health, and medical records show she routinely missed medical appointments. At this juncture, there is no way to determine definitively whether she would have met the requirements to be placed in a WTU. 5. With respect to the applicant’s ADOS-RC orders termination, the applicant signed the personnel action for voluntary release from active duty, however, it is clear errors were made during the administrative separation process. She was not separated from the Army National Guard. It appears the applicant, while serving on active duty under the provisions of Title 10, United States Code Section 12301 (d), was involuntarily released from that duty. The evidence clearly shows the provisions of paragraph 14 of Army National Guard Policy Memorandum 12-043 governing such a release were not adhered to. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008839 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008839 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2