ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160015681 APPLICANT REQUESTS: To be credited with qualifying reserve retirement years from August 2005 to August 2010 for the unreasonable 6 year lapse in processing the applicant’s medical flag condition through the Medical Evaluation (MEB)/Physical Evaluation Board (PEB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * extract (page 8 of 10) from previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings, in Docket Number AR20130003269 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * justice requires that applicant’s records be corrected as requested herein * the underlying factual basis of his matter has come before this Board, however the specifics of this instant application have not yet been addressed or resolved * he was “medically flagged” in December 2005, preventing his ability to drill for retirement points until his matter was resolved through MEB/PEB * he was also prevented from enrolling in schools, where he could have earned retirement points–a point that has been addressed by this Board * the applicant’s MEB/PEB was not resolved until 2011, leaving the applicant in a medically flagged status for more than 5 years–and more importantly, unable to drill or earn retirement points 3. The applicant provides extract (page 8 of 10) from his previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings, in Docket Number AR20130003269 where he highlights: * “the evidence of record shows he was determined by competent medical authorities to be non-qualified for further military service in December 2005, unless cleared for further service by an MEB or PEB” * “the evidence further shows his records were not viewed by a PEB until January 2011, over 5 years later, at which time he was found fit for duty. Unfortunately, while he was awaiting clearance by the PEB, he was ineligible to complete his MILED requirement, the OAC. Had he been able to attend and complete the OAC, he may have been selected for promotion to MAJ” * “delay in his PEB processing constitutes a material error, which can only be overcome by the granting to a waiver of MILED and promotion consideration to MAJ by an SSB…” 4. A review of the applicant’s service records shows the following on: * 10 November 1987 – enlisted in the Air Force Air National Guard (ANGUS) * 9 November 1993 – separated from the ANGUS, under honorable conditions characterization of service, and transferred to the Individual Ready Reserve (IRR) * 10 November 1995 – civilian break * 19 August 1997 – appointed as a first lieutenant (1LT) in the U.S. Army Reserve (USAR) * 2 October 2000 – released from the troop program unit (TPU) status and transferred to the IRR * 17 November 2000 – assigned to the USAR from the IRR * 5 September 2001 – transferred to the IRR, by reason of “personal cogent reasons” * 14 April 2005 – Orders Number C-04-506637 reassigned him from the IRR to the USAR Control Group (Individual Mobilization Augmentee (IMA)) * 23 September 2006 – Army Human Resources Command (AHRC) Form 4145 (Elections of Options - Military Service Obligation) shows that the applicant elected to remain a member of the IRR * 1 June 2018 – Orders Number D-12-730093, dated 5 December 2017, honorably discharged him from the IRR 5. On 2 February 2006, HRC notified him by memorandum that he was medically disqualified for retention in the USAR. This memorandum provided him 3 options: * he could elect transfer to the Retired Reserve if otherwise eligible for retirement based on total qualifying years of service * he could elect to be discharged from the USAR * he could elect to have his case considered by an Non-Duty Related (NDR)-PEB 6. This same memorandum also stated that “during the NDR-PEB process, a process medical disqualification “skip-code” will be placed in [his] records.” This would prevent the applicant from performing any active military service (such as Annual Training, Active Duty for Training) until the issue is resolved. The applicant may obtain military retirement points during this period by completing military correspondence. 7. On 10 February 2006, he responded to the HRC notification memorandum, indicating he desired to have his case considered by a PEB, based on injuries he incurred in the line of duty. 8. On 1 March 2006, HRC notified him by memorandum that they had considered his request for an NDR-PEB and would forward his records to the appropriate PEB for a fitness determination. The applicant would not be discharged or separated from the Selected Reserve during the processing of the case through the NDR-PEB, unless approved personally by the separation authority. The office also initiated a medical flagging action from further military assignments. 9. On 9 April 2006, he responded to HRC by informing them that an NDR-PEB was an improper board to adjudicate his medical qualification for retention, since the matter involved injuries previously determined to have been incurred in the line of duty. 10. On 18 September 2006, the applicant made an election on the AHRC Form 4145 (Election of Options – Military Service Obligation) to remain a member of the IRR. 11. On 4 December 2006, in response to the applicant’s request form enrollment in the Judge Advocate Officer Advanced Course (JAOAC), he received an email message from his career manager, who advised him he could not cut orders for him, presumably to attend the JAOAC, until his medical issues were resolved. His reservation for the JAOAC was cancelled, as a Soldier is ineligible to be scheduled for or attend training for which the U.S. Army Training and Doctrine Command (TRADOC) is the proponent, during the MEB process until the Army Disability Evaluation System (DES) process is completed (including a decision on any appeal). 12. On 12 June 2007, the applicant requested assistance with the initiation of a MEB/PEB in his pending matter, as more than 18 months had passed with no action taken. 13. On 6 April 2010, an MEB convened at the Military Treatment Facility in Fort Polk, LA. The board recommended that the patient be referred to a PEB for neck and back pain due to spondylosis, resulting from a car accident the applicant was involved in while traveling to active duty special work in 2000. The applicant stated he did not concur with the board’s findings and recommendations and requested an impartial medical/behavior health review of his MEB on 22 April 2010. His reason for the appeal was to include medical conditions related to, or in addition to, those considered by the MEB. These medical conditions were hand pain/weakness, bilateral arm pain/ weakness, right foot pain/ weakness, upper and lower extremity paresthesia, difficulty sleeping, headaches, and deltoid and triceps spasms. 14. In August and October 2010, two extensions were requested to the PEB, respectively. 15. On or about 6 January 2011, a PEB convened at Fort Sam Houston, TX, to consider his case and found him fit for duty. 16. On 24 February 2011, he indicated his non-concurrence with the board's findings and recommendation and his election to appeal the board results. 17. On 11 March 2011, the applicant requested postponement of the PEB scheduled for 23 March 2011 stating that: * Service member is an IRR Reservist who had been in the IRR for the past decade * Service member had been provided less than 2 weeks’ notice to appear before the PEB * he had pre-scheduled private sector commitments which cannot be rescheduled “without incurring dire consequences in his civilian life” * he requested postponement of the formal board and requested (to the extent possible) advance notice of scheduling of the formal PEB 18. On 7 April 2011, the applicant failed to appear for his formal PEB without providing appropriate notice. 19. The applicant’s records include a corrected DA Form 199 (PEB Proceedings), dated 20 April 2011, which states in item 8b, Disability Description, the following: * his conditions are long-standing, since 2000, per the Line of Duty (LOD) * the applicant had been in the IRR since 2005, therefore, he does not have any OERs and has not taken an APFT since 2004, and there is no evidence his Commander made any comments pertaining to his ability to perform his duties * per the NARSUM, he was able to make a living practicing law and in real estate and has only lost two weeks of work within the last year * although the applicant reports he cannot perform basic Soldier tasks, there is no reason he cannot function as a JAG Officer in Garrison and serve the Army well * the applicant had a restrictive profile that precludes the functional activities, but does permit an aerobic event for the APFT 20. On 25 April 2011, the U.S. Army Physical Disability Agency (USAPDA) approved and affirmed the board's findings and recommendation. The applicant was notified via memorandum. 21. The applicant then petitioned from ABCMR for the following 2 cases: * 14 February 2013 – he petitioned the Board to be promoted to the rank of MAJ, which would enable him to continue his career in the USAR, or in the alternative, to be placed on the Retired list, by reason of physical disability in the rank of CPT * 17 October 2013 – the Board granted a partial relief of: * a waiver for the educational requirement for promotion to MAJ * that following administrative implementation of the foregoing, his records be submitted to a duly-constituted Special Selection Board (SSB) for promotion reconsideration under 2007 and, if necessary, later-year criteria * that, if selected, his records be further corrected by showing he met all eligibility criteria for promotion and was promoted to the next higher grade on his date of eligibility * that if selected for promotion, his records be further corrected to show: * his discharge is void, and that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge to the date of his return to the active Reserve status; * that an adequate explanation be placed in his OMPF to show that gap in his officer evaluation reports, from the dates of his now voided discharge to the date of return to active Reserve status, and was not caused by any fault on his part * that all documents related to his now voided non-selection for promotion, and his discharge be expunged from his official military records * that if not selected, the applicant be so notified * the applicant was denied of so much of the application that pertained to his request for immediate promotion to MAJ or retirement by reason of his physical disability in the rank of CPT * 24 July 2014 – he petitioned an amendment or clarification of the Board’s opinion to specifically state that the applicant receive qualifying reserve credit beginning from the date of his first discharge, effective 1 April 2010; no action was taken by the board, as HRC had favorably responded to each of his contentions 22. On 4 November 2013, HRC, Fort Knox, issued a memorandum to the ABCMR that the applicant would be reconsidered for promotion by a SSB. 23. On 5 June 2014, the applicant was promoted to the rank of MAJ by an SSB, with an effective date of 17 August 2008. 24. On 13 May 2015, the applicant was notified by HRC that his records had been corrected by removing all discharge orders and all documents related to non-selection from the applicant’s Official Military Personnel file (OMPF). 25. His record is void of a DA Form 268 (Report to Suspend Favorable Actions). It contains a DA Form 5016 (Chronological Statement of Retirement Points), dated 13 February 2019, showing the following for the time period in the applicant’s request: * 19 August 2005-18 August 2006; 5 extension course points and 15 membership points for 20 creditable points for retirement * 19 August 2006-18 August 2007; 15 membership points for 15 creditable points for retirement * 19 August 2007-18 August 2008; 15 membership points for 15 creditable points for retirement * 19 August 2008-18 August 2009; 15 membership points for 15 creditable points for retirement * 19 August 2009-18 August 2010; 15 membership points for 15 creditable points for retirement 26. The applicant's DA Form 5016 also shows: * he earned at least 50 retirement points for each of his retirement years from: * 10 November 1987 through 9 November 1993 * 19 August 1997 through 18 August 2001 * 19 August 2004 through 18 August 2005 * 19 August 2010 through 18 August 2015 * he failed to earn at least 50 retirement points in each of his retirement years from: * 10 November 1993 until his break in service on 10 November 1995 * 19 November 2001 until 18 August 2004 * 19 August 2005 until 18 August 2010 * 18 August 2015 until his separation from the IRR on 1 June 2018 * his total qualifying years of service for retirement is 16 years 27. Orders Number D-12-730093, dated 5 December 2017, honorably discharged him from the IRR effective 1 June 2018. 28. Army Regulation (AR) 140-185 (Training and Retirement Points Credits and Unit Level Strength Accounting Records) , paragraph 1-7 states a qualifying year of service for non-regular retired pay is a full year during which a RC member is credited with a minimum of 50 retirement points. The applicant was assigned to the IRR since 5 September 2001. IRR Soldiers may attend battle assemblies (inactive duty) with local Reserve units for retirement points only (non-pay status). Due to his status in the IRR during the process of the MEB/PEB, the applicant was notified by HRC via memorandums the following: * during an NDR-PEB, active military service (such as Annual Training, Active Duty for Training) cannot be performed * military retirement points can be obtained by completing military correspondence * a medical flagging action was initiated from further military assignments, in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-8 (d) BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. One outcome discussed was that based upon a review of the documentary evidence submitted by the applicant and found within the military service record, the applicant’s retirement points were accurately depicted within his service record and warranted no change. However, based upon the totality of the circumstances, the Board determined that the applicant suffered an injustice given the long and complex process he had to endure from the medical Board and Physical Evaluation Board. Therefore, in the interest of correcting the injustice the Board recommended granting the applicant’s request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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: a. changing total creditable retirement points for RYE 19 August 2005 to 50 points instead of 20 points; b. changing the total creditable retirement points for RYE 19 August 2006 to 50 points instead of 15 points; c. changing total creditable retirement points for RYE 19 August 2007 to 50 points instead of 15 points; d. changing the total creditable retirement points for RYE 19 August 2008 to 50 points instead of 15 points; and e. changing total creditable retirement points for RYE 19 August 2009 to 50 points instead of 15 points. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 140-185 (Training and Retirement Points Credits and Unit Level Strength Accounting Records) contains Army policy for USAR training and retirement point credit. Paragraph 1-7 states a qualifying year of service for non-regular retired pay is a full year during which a RC member is credited with a minimum of 50 retirement points. Except as otherwise provided by law, an accumulation of 20 such years is one requirement necessary to qualify for non-regular retired pay. 3. AR 140-1 (Army Reserve - Mission, Organization, and Training) shows that USAR control groups include: a. Control Group (Annual Training) consists of non-unit Ready Reserve Soldiers with a training obligation. These Soldiers may take part in annual training when so directed. b. Control Group (IMA) consists of Ready Reserve non-unit Soldiers who are assigned to authorized augmentation positions documented on Active Army organization mobilization Tables of Distribution and Allowances (TDA). These Soldiers are considered available for mobilization or national emergency. IMA and drilling IMA Soldiers are required to perform a minimum of 12 days of annual training per fiscal year exclusive of travel time. Periods of inactive duty for training for pay may be authorized within budgetary constraints. c. Control Group (Reinforcement) consists of all other non-unit Ready Reserve Soldiers not assigned to another control group. These Soldiers may be assigned to a USAR unit or IMA position. d. IRR Soldiers may attend battle assemblies (inactive duty) with local Reserve units for retirement points only (non-pay status). 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on the criteria in AR 40-501 (Medical Fitness Standards for Retention and Separation Including Retirement), chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. b. Paragraph 4-8 (d) defines the status of Soldiers undergoing disability evaluation. From the time a Soldier receives a P3/P4 profile referring them to a MEB until the time the DES process is completed (including a decision on any appeal), the Soldier— (1) Will remain available for the DES process to complete any required actions. Leave, while permissible, is generally discouraged in the MEB phase with the exception of emergency situations. Commanders may grant leave as long as the leave or other required absence is communicated immediately to the assigned PEBLO and does not prevent timely completion of DES appointments. (2) Is ineligible for transfer within a component or transfer between components. This includes involuntary transfer to the IRR when the RC Soldier is otherwise eligible to remain a member of the Selected Reserve during DES evaluation. (3) Is ineligible to be scheduled for or attend training for which TRADOC is the proponent. c. Chapter 5 (Adjudicative Policy for PEB and USAPDA Determinations) defines the standard for unfitness due to disability. (1) A Soldier will be considered unfit when the preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably perform the duties of their office, grade, rank, or rating (hereafter call duties) to include duties during a remaining period of Reserve obligation. (2) The PEB considers whether the Soldier can perform the common military tasks required for the Soldier’s office, grade, rank, or rating, including those duties during a remaining period of Reserve obligation. 5. AR 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) prescribes Army policy for the suspension of favorable personnel actions (Flag) function of the military personnel system. Chapter 2-2d (Involuntary Separation or Discharge) states Soldiers will not be flagged solely for undergoing a medical evaluation board. ABCMR Record of Proceedings (cont) AR20160015681 7