ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20160011944 APPLICANT REQUESTS: * Release from Active Duty (REFRAD) orders on 17 January 2009 be voided and she remain on active duty until date of retirement on 31 October 2013 * back pay for active duty service from 17 January 2009 until her retirement date on 31 October 2013 * receive credit for time in grade for pay, promotion and retirement purpose from the date of separation 17 January 2009 to 31 October 2013 * promotion to Lieutenant Colonel (LTC) in accordance with her selection for promotion in 2009 and retirement in the grade of LTC APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Supplemental Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders A-12-723253 (Deployment Orders) dated 3 December 2007 * State of Michigan Traffic Crash Report * Medical Records * DA Form 2173 (Line of Duty Determination) x 2 * Promotion Announcement * Memorandum Subject: Request for Medical Retention Processing 2 (MRP2) packet, dated 4 August 2009 * Memorandum Subject: Request for Extension beyond Mandatory Retirement Date (MRD) packet * DA Form 199 (Physical Evaluation Board (PEB)) * Orders 310-089 (State Military Retirement List Orders) * Orders 324-104 (Separation Orders) * Orders 035-107 (Amended Separation Orders) * Department of Veterans Affairs (VA) Incompetency Findings * Department of Army and the Air Force letter, dated 17 December 2014 * Retirement Points Accounting Statement * DFAS – CL 7220 (Retiree Account Statement), dated 21 March 2014 * Army Commendation Medal Certificate * General Power of Attorney FACTS: 1. The applicant states she was a National Guardsman's ordered to active duty in support of Operation Enduring Freedom from 19 January 2006 to 17 January 2009. Her statement shows: * while traveling prior to reaching home she was in a serious automobile accident * she suffered significant injuries to include a Traumatic Brain Injury (TBI) * her condition was found to be in the line of duty, she was referred to a Physical Evaluation Board (PEB) * she was found unfit for further duty, she was medically separated from the Michigan Army National Guard and placed on the retirement list * she request to return to active duty to tend to injuries; however she was denied and told to apply for incapacitation pay * applicant was selected for promotion to LTC after receiving an approved REFRADD, she was retired as a Major (MAJ) * applicant's request to extend her MRD was approved until she reached the age of 62, a second request to extend her MRD was denied with direction to the Michigan Army National Guard to separate applicant on an expedited basis * applicant's incapacitation pay was stopped because of the MRD extension request was denied * a PEB found the applicant 100% disabled, she was later declared incompetent by the VA * she believes she should have been returned to active duty while she was evaluated for fitness * she did not achieve 20 good years of retirement as a result of being improperly denying to remain on active duty while determining if she was unfit * because she did not achieve regular retirement she has been denied dual compensation by the VA, resulting in a reduction in her disability pay 2. A review of the applicant records show: * 24 May 1989 – commissioned as an officer in the Michigan Army National Guard (MIARNG), as a Medical Surgical Nurse (66H) * 13 May 2003 – promoted to the rank of MAJ * 3 December 2007 - Orders A-12-723253 applicant was ordered to active duty for operational support to Rock Island Arsenal in support of contingency operation for active duty operational support, active duty period: 11 months 30 days, ending 17 January 2009 3. The applicant provided medical reports that show: * 17 January 2009 according to the State of Michigan Traffic Report, the applicant was involved in an automobile accident * the report states the vehicle was heading east bound on I-94 when it lost control on ice covered roads and rolled over * 21 January 2009 medical reports show the applicant was seen for injuries related to car accident * 4 February 2009 the applicant was seen for double vision and headaches, there was bruising over the left eye and disturbance in memory * 10 February 2009 Dr. X__ provided a letter stating applicant suffered from back pain that radiated down her leg, it has been persistent and progressively getting worse 4. 4 May 2009 a DA Form 2173 Line of Duty regarding back injury due to motor vehicle accident was completed on the applicant showing * she was traveling home to Troy, MI on the last day of her orders from Fort McCoy, she encountered black ice * her vehicle rolled and came to rest in the ditch on the driver's side, the applicant struck her head, braking the vehicle's side window * 19 January 2009 applicant sought medical attention due to back pain * 9 March 2009 the applicant underwent surgery to: remove instrumentation L4-S1 with exploration and fusion, revised L3-L4-5 central laminectation with decompression of canal and lateral recess, right side L2-2 laminotomy, repaired dural leak, L2-3, L3-4 posterior spinal fusion L2-L4 single instrumentation, aspiration Left side iliac crest * the attending physician/ patient administrator states she has no firsthand knowledge of the injuries the applicant suffered; however after reviewing the applicant's records it's been determined neither drugs nor alcohol contributed to the incident resulting in the injuries sustained by the applicant 5. 4 August 2009, the Medical Review Board denied the applicant's request for medical retention processing 2 (MRP2) because a DA Form 2173 was not done until May 2009 and box 31 was checked no for formal line of duty investigation required. In accordance with regulation a formal line of duty investigation is required to approve a MRP2. 6. 6 August 2009 the applicant was listed on the Fiscal Year (FY) 09 Lieutenant Colonel Reserve Component Army Medical Department (AMEDD) Promotion list. 7. 17 August 2009 the applicant appealed the MRP2 denial and resubmitted the MRP2 packet to the Warrior Transition Command Clinical Operations. 8. 15 September 2010 a DA Form 2173 Line of Duty regarding head injury, post-concussion syndrome was completed on the applicant showing: * she was not under the influence * was not mentally sound * injury is likely to result in a claim against the government for future medical care * injury occurred in the line of duty 9. The applicant provided three memorandums showing the injuries sustained from the accident occurring on 17 January 2009 were in the line of duty. 10. 31 October 2011 the Assistant Secretary of the Army (Manpower and Reserve Affairs) provided memorandum Subject: Retention Beyond Mandatory Removal Date (MRD) and Ratification of Service for [applicant], showing: * the memorandum was in response to MIARGN request for Ratification of Service and Retention Beyond MRD for [applicant] dated 8 April 2011 and the applicant's request for Retention Beyond MRD, dated 21 June 2011 * the request was approved to retain [applicant] beyond her MRD until 30 November 2011, or until 30 days after completion of her Physical Disability Evaluation System processing, but not to exceed her 62nd birthday * no further extension will be granted * the period of service from 1 December 2010 through her MRD will be ratified and deemed the entire period will be credible service 11. 3 September 2013 a PEB convened on behalf of the applicant. The DA Form 199 shows: * the board found the applicant physically unfit, recommended a rating of 100% and a disposition of permanent disability retirement * the applicant received 100% rating for mood disorder with insomnia, 70% rating for Traumatic Brain Injury, 20% rating for necking strain and degenerative disc disease, 10% rating for moderate thoracolumer spinal stenosis 12. 6 November 2013, Order 310-089 show the applicant was placed on the State Military Retired List at the Rank of MAJ. 13. 4 February 2014, Orders 035-107 shows the applicant assignment loss code: Early Qualification for Retired Pay at age 60. 14. The applicant provided a memorandum from the Department of the Army and Air Force MIARGN Officer Branch Technician show * the memorandum was in response to the applicant's request for a retirement point accounting statement * statement reflects the applicant earned 17 years creditable service for retirement pay 15. 9 August 2018 the National Guard Bureau (NGB) provided an Advisory Opinion regarding the applicant's request for promotion and record correction to DD 214, and for back pay and allowances. The advisory shows: * recommends partial approval * recommend denial of applicant's request to return to active duty * recommend promotion of applicant to LTC with effective date of 24 July 2009 * recommend applicant's records reflect LTC grade and she receives pay and/ or allowances reflective of that grade * NGB Promotion Board, Officer Policy branch and Human Resource Personnel Division concurs with the recommendation * MIARGN did not provide input regarding the case 16. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation) outline requirements for Physical Evaluation Boards (PEB). PEBs determine fitness for purposes of Soldiers retention, separation or retirement for disability under 10 USC Chapter 61, or separation for disability without entitlement to disability benefits under other than 10 USC Chapter 61. The PEB also makes certain administrative determinations that may have benefit implications under other provisions of law. a. Grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit is determined if the officer is on an approved (and confirmed, if required) promotion list prior to the effective date of transfer to the retired list. Army National Guard (ARNG) officers selected for promotion by a Federal Recognition Board must be on a promotion nomination scroll approved by the Deputy Secretary of Defense or have received Senate confirmation b. 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 processing until final disposition. The original orders issuing authority is responsible for coordinating with MEDCOM to generate a 12301(h) order extending the Soldier on active duty to complete the Disability Evaluation System (DES) process. The original orders issuing authority is responsible for providing the funding for the 12301(h) order and any temporary duty travel for DES required appointments 17. Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) applies to Soldiers of the USAR and the ARNG of the United States, including those serving on active duty under the provisions of Title 10. Paragraph 7-2a states that Soldiers who incur or aggravate an injury, illness, or disease while on orders for more than 30 days may elect to extend on active duty until treatment is completed. Soldiers who incur or aggravate an injury, illness, or disease while participating in training may be treated in a medical treatment facility or be provided medical care elsewhere at Government expense. Soldiers are authorized follow up medical care for injury, illness, or disease incurred or aggravated in line of duty after completion of active or inactive duty training. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions, medical concerns, and the advisory opinion were carefully considered. 2. Based upon the preponderance of evidence, the Board agreed there is no evidence she provided the military an opportunity to keep her on Active duty with her consent, on the last day of her period of service. RC Soldiers on Active duty orders specifying a period of more than 30 days will, with their consent, be kept on AD for disability evaluation until final disposition by the PDES process. Therefore, there was a presumption she elected to leave Active duty at that time. On 4 May 2009, the applicant’s medical diagnosis was determined to be In The Line of Duty. The Board concluded there was no fault of the government when that determination was made, as she received due process for her medical concerns by way of the PEB. Therefore, the request for reinstatement, service credit, and pay for the period from the accident to her retirement is denied. 3. The Board agreed with the advisory opinion the applicant should have received her promotion to LTC prior to her retirement date. NGB recommended 24 July 2009 as her date of rank to LTC. The Board agreed she should receive all pay and entitlements based on the rank of LTC effective 24 July 2009, and be placed on the retirement list as a LTC. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she was promoted to the rank of LTC with an effective date and date of rank of 24 July 2009, back pay and entitlements, and placement on the retirement list as a LTC with back pay and entitlements. 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 voiding her REFRAD orders; and providing additional Active duty service credit through her retirement date; and back pay for active duty service from 17 January 2009 until her retirement date on 31 October 2013 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation) outline requirements for Physical Evaluation Boards (PEB). PEBs determine fitness for purposes of Soldiers retention, separation or retirement for disability under 10 USC Chapter 61, or separation for disability without entitlement to disability benefits under other than 10 USC Chapter 61. The PEB also makes certain administrative determinations that may have benefit implications under other provisions of law. a. Grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit is determined if the officer is on an approved (and confirmed, if required) promotion list prior to the effective date of transfer to the retired list. ARNG officers selected for promotion by a Federal Recognition Board must be on a promotion nomination scroll approved by the Deputy Secretary of Defense or have received Senate confirmation, if recommended for promotion to colonel or higher, prior to the effective date of transfer to the retired list. b. RC 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 processing until final disposition. The original orders issuing authority is responsible for coordinating with MEDCOM to generate a 12301(h) order extending the RC Soldier on active duty to complete the DES process. The original orders issuing authority is responsible for providing the funding for the 12301(h) order and any temporary duty travel for DES required appointments. 2. Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) applies to Soldiers of the USAR and the Army National Guard of the United States, including those serving on active duty under the provisions of Title 10. Paragraph 7-2a states that Soldiers who incur or aggravate an injury, illness, or disease while on orders for more than 30 days may elect to extend on active duty until treatment is completed. Chapter 2 states that Reserve Component (RC) Soldiers who incur or aggravate an injury, illness, or disease while participating in training may be treated in a medical treatment facility or be provided medical care elsewhere at Government expense. Soldiers are authorized follow up medical care for injury, illness, or disease incurred or aggravated in line of duty after completion of active or inactive duty training. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160011944 0 6 1