IN THE CASE OF: BOARD DATE: 11 February 2020 DOCKET NUMBER: AR20160018232 APPLICANT REQUESTS: in effect, correction of his record to show the was retired due to physical disability on 15 February 2012 vice separation from the South Carolina Army National Guard (SCARNG) and correction of his record to show entitlement to combat related special compensation (CRSC) effective the same date with retroactive CRSC payments. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, SCARNG, subject: Medical Qualifications (Applicant) dated 23 February 2011 * Memorandum, SCARNG, subject: Medical Qualifications (Applicant) dated 6 July 2011 * Memorandum, SCARNG, subject: Request Extension Waiver (Applicant) dated 9 November 2011 * Memorandum, SCARNG, subject: Request Extension Waiver (Applicant) dated 10 November 2011 * Memorandum, SCARNG, subject: Request for a Medical Extension Waiver (Applicant) dated 15 November 2011 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 15 November 2011 * Memorandum SCARNG, subject: Notification of Separation Proceedings under Army Regulation 135-178 and National Guard Regulation 600-200, dated 15 February 2012 * Army National Guard General Discharge Certificate dated 15 February 2012 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with ending date 15 February 2012 * Memorandum, U.S. Army Physical Disability Agency (USAPDA), subject: Permanent Physical Disability Retirement (Applicant), dated 14 July 2015 * Letter, U.S. Army Human Resources Command, subject: (Applicant) Army CRSC Decision Letter, dated 8 July 2016 FACTS: 1. The applicant states he was discharged from the SCARNG while he was in the medical evaluation board (MEB) process. In early 2011 the SCARNG initiated proceedings to determine if he was fit for duty. The State medical board met on 1 July 2011 and determined his injuries (Purple Heart recipient) were in the line of duty. The board recommended his case file undergo an MEB. He was informed by letter he could no longer attend unit training assemblies or perform any kind of training. On 9 November 2011, his unit sent a memorandum to higher headquarters requesting a 6 month enlistment extension waiver so he could complete the MEB process. On 15 November 2011, his enlistment extension request was approved. Three months later his unit said he had unexcused absences requiring his separation for unsatisfactory performance. On 22 February 2012 he was discharged from the ARNG and issued an ARNG General Discharge Certificate. This action by his unit and its higher headquarters were administratively wrong because he had been extended for a year and he was told not to attend drill because he was pending review by an MEB. In 2014 his case was brought to the attention of The Adjutant General of the South Carolina National Guard. He was administratively brought back to complete the medical retirement process. In August 2015, he was placed on the permanent disability retired list. He applied for CRSC and it was approved. In September 2016 he began to receive CRSC pay entitlements. He states he was erroneously discharged through no fault of his own in 2012 before completion of his MEB. He states he is due back pay for all that lost time. He requests correction to his record by showing he was medically retired in 2012 so that he can receive retroactive pay for the years from 2012 to 2016. He claims it was due to administrative errors and the delayed processing of his MEB that caused the delay in his receiving medical retirement pay. He has suffered undue financial and personal hardship because of these numerous errors. 2. With more than 8 years of inactive service in the SCARNG, the applicant entered active duty on 15 October 2006 in support of Operation Enduring Freedom. He served in Afghanistan from 21 January 2007 through 23 January 2008. He was wounded in action and received the Purple Heart. 3. On 29 January 2008, Headquarters, Fort Stewart and Hunter Army Airfield issued Orders 029-0019 releasing the applicant from active duty, not by reason of physical disability, and reassigned him to his SCARNG unit effective 7 April 2008. Accordingly, the applicant was discharged and issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) documenting his active duty service including his inclusive combat service dates in Afghanistan and showing he received the Purple Heart. He returned to his SCARNG unit were he attended his scheduled unit training assemblies and participated in additional required training. 4. Filed in his official military personnel record are documents associated with extending his enlistment contract because he was undergoing an MEB. An undated memorandum signed by his unit commander stated the applicant had a diagnosis of post-traumatic stress disorder (PTSD) and issues related to his combat injuries incurred during his deployment to Afghanistan. His unit commander requested a 6 month extension to his enlistment contract. 5. On 11 November 2011 by memorandum the Deputy Chief of Staff for Personnel at the SCARNG approved the request for an enlistment extension waiver for 12 months. He stated the waiver was approved to allow the applicant ample time to undergo and complete a required MEB. The applicant’s new expiration of term of service (ETS) date was established as 11 November 2012 or the date of final determination of the MEB, which ever was first. His unit commander was told to complete a DA Form 4839 and file it in the applicant’s records. 6. Accordingly on 15 November 2011, the applicant and a commissioned officer completed and authenticated a DA Form 4836 showing he extended his enlisted service by 1 year establishing his new ETS as 11 November 2012. This document is filed in his record. 7. On 22 February 2012, the SCARNG published State Orders 053-879 discharging the applicant from the ARNG and transferring him to the U.S. Army Reserve (USAR) Control Group (Annual Training) effective 15 February 2012. This order shows his type of discharge as general, under honorable conditions. (There are no documents within the applicant’s electronic military personnel record supporting the decision to issue him an ARNG General Discharge Certificate.) 8. Based on the publication of separation orders, the applicant was issued an NGB Form 22 showing his initial enlistment in the SCARNG was on 27 November 1999. His rank and pay grade at time of separation are shown as specialist/ E-4 with a date of rank of 8 June 2011. The authority and narrative reason for separation are shown as National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-35j for unsatisfactory participation. He had more than 13 years of service in the SCARNG. 9. On 24 February 2012, the U.S. Army Human Resources Command (HRC) issued Orders C-02-202939 releasing the applicant from the USAR Control Group (Annual Training) and assigning him to the USAR Control Group (Reinforcement). 10. On 13 November 2012, HRC issued Orders D-11-2164467 honorably discharging the applicant from the USAR presumably because he had completed his mandatory service obligation during his SCARNG enlistment periods. 11. On 16 October 2014 the SCARNG issued Orders 289-858 revoking the applicant’s discharge order identified as Orders 053-879 issued on 22 February 2012. 12. On 22 October 2014 the applicant was promoted to sergeant/pay grade E-5 by SCARNG Orders 295-809. 13. On 22 January 2015, HRC issued Orders A-01-500512 ordering the applicant to active duty under the provisions of Title 10, U.S. Code, section 12301 (H) to participate in the Reserve Component Managed Care Evaluation/Disability Evaluation System (DES). The purpose of this order was to allow him to attend medical appointment(s). He was ordered to duty for 1 day plus allowable travel time and directed to report on 3 February 2015. 14. On 26 June 2015, the Department of Veterans Affairs (VA) issued the applicant a rating decision. From reviewing this document it appears the applicant filed his first claim with the VA in calendar year 2009. His combined evaluation for compensation was 90 percent as of 19 November 2010 and it documents his updated ratings as follows: * PTSD (DES referred illness) rated 70 percent as of 19 November 2010 * post-traumatic migraine headache associated with traumatic brain injury rated 50 percent as of 8 January 2015 * traumatic brain injury rated 40 percent as of 19 November 2010 * tinnitus rated 50 percent as of 8 January 2015 * arterial hypertension rated zero percent 15. On 26 June 2015, a physical evaluation board (PEB) convened finding the applicant was physically unfit and recommended a rating of 70 percent with permanent disability retirement. The unfitting disability was PTSD which was the MEB referred medical diagnosis. It states, in pertinent part, the onset of PTSD occurred in 2007 while the applicant was deployed to Afghanistan. This condition was considered in the line of duty and he was found unfit due to physical profile limitations in that he was unable to reasonably perform his military occupational specialty duties or carrying out the responsibilities associated with his assigned duties. There were numerous diagnoses that were determined not to be unfitting including traumatic brain injury. The PEB did determine the applicant’s disability did result from a combat-related injury under the provisions of Title 10, U.S. Code, section 10216. 16. On 7 July 2015 the applicant concurred with the informal PEB findings and recommendations waiving a formal hearing of his case. Further, he did not request reconsideration of his VA ratings. 17. On 14 July 2015, the USAPDA published Orders D 195-54 releasing the applicant from his assignment and duty because of permanent physical disability incurred while entitled to basic pay. His date of permanent disability retirement was established by the USAPDA as 18 August 2015. He was retired in pay grade E-5. His percentage of disability was 70 percent. Concurrently a memorandum was issued to the applicant advising him he must submit an application for retired pay to the Defense Finance and Accounting Service. 18. On 20 July 2015 a USAPDA authority acting on behalf of the Secretary of the Army approved the applicant’s informal PEB. The applicant’s electronic personnel record contains the applicant’s completed and authenticated DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings). 19. In compliance with Orders D 195-54, the SCARNG issued the applicant a NGB Form 22 which also placed him on the permanent disability retired list. This NGB Form 22 shows he reentered service on 15 February 2012 and was retired effective 17 August 2015. His total service for retired pay was 16 years. His rank is shown as sergeant/pay grade E-5 with a date of rank of 22 October 2014. 20. On 4 January 2016 the applicant submitted a claim for CRSC. 21. On 8 July 2016 the HRC approved the applicant’s claim for CRSC. His total combat-related disability was rated at 90 percent with the effective period starting in September 2015 (his first official month on the permanent disability retired list). 22. In support of his application the applicant provided the following evidence: a. A 23 February 2011 memorandum showing the State surgeon requested the applicant’s history of PTSD, depression and a head injury be evaluated by an MEB (State board). This memorandum provided instructions to the applicant and his chain of command informing them each was required to prepare or submit evidence in support of the MEB. b. A 6 July 2011 memorandum informed the applicant and his chain of command the (State) MEB met on 1 July 2011 reviewing the applicant’s history of PTSD, depression, head injury, and lower back pain. The State board found the applicant’s conditions to be in the line of duty and determined it would send his records to an MEB. This memorandum further states, "Effective upon receipt of this memorandum, the Soldier will not perform [inactive duty training] IDT, [active duty training] AT, or any other training." This memorandum was signed on behalf of The Adjutant General. c. A 9 November 2011 memorandum initiated by his unit commander requested an enlistment extension waiver due to his pending MEB which would not be completed by his ETS date. The commander requested a 6 month waiver. On 10 November 2011, the applicant’s battalion commander endorsed the memorandum. d. On 15 November 2011 the approval authority issued a memorandum extending the applicant’s enlistment by 12 months establishing a new ETS date of 11 November 2012. Accordingly he extended and provided the DA Form 4836 documenting and verifying his extension. e. On 15 February 2012 by memorandum the applicant’s unit commander informed him he was absent without authority from his unit for a period of nine inactive duty training periods. He further notified the applicant he was initiating separation action under the provisions of Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations) and NGR 600-200. He recommended the applicant receive a general, under honorable conditions characterization of service. He provided the applicant an opportunity to respond within 15 days of the date of the letter. f. Notwithstanding the 15 day rebuttal period identified in the notification of elimination action, the State issued the applicant an ARNG General Discharge Certificate on 15 February 2012. It also prepared and issued the applicant an NGB Form 22 showing his date of separation as 15 February 2012. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his extension of service, a pending MEB and his separation orders. The Board considered the revocation of his separation orders, his promotion to SGT, the disability evaluation system processing, his retirement as a result of physical disability and approval of his request for CRSC. The Board found that the applicant’s disability process was preempted by his separation in 2012 and that this separation delayed the determination by the PEB and the effective date of his approved request for CRSC. The Board considered the period of time required to complete the applicant’s restarted disability proceedings and the subsequent date of approval of his CRSC request. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s record to remedy the unjust delay in his disability retirement processing. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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: - Amending USAPDA Orders D 195-54 to reflect the applicant was retired in the rank of SGT by reason of permanent physical disability effective 7 November 2013; - Amending the 8 July 2016 HRC approval of his request for CRSC to reflect an effective date of 7 November 2013; - Amending the applicant’s NGB 22 accordingly, and; - Paying the applicant money due him as a result of this correction. 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 changing the date of his medical retirement or his effective date of his CRSC to 15 February 2012. 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 26, U.S. Code, section104 (Compensation for injuries or sickness) states gross income (for income tax purposes) does not include amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity. The term "combat-related injury" means personal injury or sickness which is incurred- * as a direct result of armed conflict * while engaged in extra hazardous service, or * under conditions simulating war; or which is caused by an instrumentality of war 2. CRSC, as established by section 1413a, Title 10, U.S. Code, as amended, states the Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat- related disability of the retiree as determined under this section. The amount paid to an eligible combat-related disabled uniformed services retiree for any month may not exceed the amount of the reduction in retired pay that is applicable to the retiree for that month under sections 5304 and 5305 of title 38. An eligible combat-related disabled uniformed services retiree is a member who is entitled to retired pay and has a combat- related disability. 3. Department of Defense Instruction (DoDI) 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2 (Combat-Related), covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 4. DoD 7000.14-R (Financial Management Regulation) Volume 7B, Chapter 63 (CRSC) states CRSC provides special compensation to member of the uniformed services who have retired pay reduced because of receiving VA disability compensation where a portion of the VA disability compensation is the result of disability that are combat- related as determined by the Military Department. The effective date of CRSC is 31 May 2003. CRSC is not military retired pay. It is a monthly entitlement that is paid only in whole month increments. The source of funding is the DoD Military Retirement Fund. A member must apply for CRSC and elect to receive compensation under the CRSC program. The burden of proof that a disability is combat-related rests with the applicant. Each Military Department will receive and process applications submitted by members retired from that Military Department on a DD Form 2860. If the member meets all four preliminary criteria, then the Military Department will determine whether the member’s disability is a qualifying combat-related disability. The Military Department will record each disability determined to be combat-related with assigned medical diagnosis code(s). The Military Department will forward approved claims to the Defense Finance and Accounting Services for payment. Appeals for denial of claims are made to the Military Departments Board for Correction of Military Records. 5. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states, in pertinent part, that PEBs determine fitness for purposes of Soldiers retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The PEB also makes certain administrative determinations that may have benefit implications under other provisions of law. Chapter 5 addresses the standards for the PEB’s adjudicative determinations. a. Unless reserved for higher authority, USAPDA approves disability cases for the Secretary of the Army and issues the disposition instructions to the transition center for Soldiers separated or retired for physical disability from an active duty status. The USAPDA publishes the disability orders for Soldiers of the USAR and ARNG who are not on active duty. b. Permanent disability retirement is directed under Title 10, U.S. Code, sections 1201 or 1204, as applicable, when the Soldier is determined unfit for continued service and has a compensable disability in accordance with the standards of this regulation, and the disability(ies) are permanent and stable, and the disability rating will not improve to less than 80 percent. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating less than 30 percent. Title 10, U.S. Code, section 1204, provides for the physical disability retirement of a member who is on active duty for 30 days or less or on an inactive duty training status. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160018232 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1