ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 22 June 2020 DOCKET NUMBER: AR20170005933 APPLICANT REQUESTS: * Incapacitation (INCAP) pay (Tier 1) from 4 May 2013 to 20 January 2015, providing active duty pay and allowances to include back-pay of Basic Allowance for Housing and back-pay for Basic Allowance for Subsistence * repayment of his United Methodist Church Early Pension withdrawal of $ * repayment of his Thrift Savings Plan (TSP) early withdrawal including Federal tax penalties of $ * unspecified amount of compensation for drill payments recouped by the Defense Finance and Accounting Services (DFAS) while undergoing Integrated Disability Evaluation System (IDES) evaluation and eventual retirement * Federal Employees Retirement System (FERS) disability retirement vice approved request for deferred annuity retirement at age 56 to include FERS retired back-pay totaling $ * Federal civilian employment back-pay from 1 July 2010 to 19 January 2015 of $ for his GS12, Step 4 dual status military technician Federal position reclassified as GS11, Step 10 * a finding of Uniformed Services Employment and Reemployment Rights Act (USERRA) discrimination against him based on his seniority, status, and pay benefits * a finding he was the victim of Federal and military Whistleblower Reprisal APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, dated 9 January 2017 * list of attachments, labeled 1-16 * Missouri National Guard (MOARNG) Joint Force Headquarters memorandum regarding INCAP pay denial, dated 8 February 2014 * U.S. Army Physical Disability Agency (APDA) memorandum, dated 16 December 2014 * Information Paper, dated 30 July 2014 * National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service, dated 19 January 2015 * Honorable Discharge Certificate, dated 19 January 2015 * email correspondence, dated February 2015 * Army Basic Pay and Allowances charts, effective 1 January 2014 * Army National Guard (ARNG) G1 Personnel Gateway, INCAP pay information sheet * multiple Army Wounded Soldier and Family Hotline Intake Forms and Resolution Action Plans, dated between November 2013 - March 2014 * self-authored memorandum addressed to NGB, appealing INCAP pay denial, dated 5 March 2014 * numerous pages of Department of Veterans Affairs (VA) medical records, dated February 2014 * multiple NGB memoranda regarding Line of Duty (LOD) determination, dated between September 2010 – January 2014 * email correspondence, dated March 2014 * U.S. Army Physical Evaluation Board (PEB) memorandum requesting VA rating , dated 21 March 2014 * VA letter, dated 24 March 2014 * partial DA Form 3947 (Medical Evaluation Board (MEB) Proceedings, dated 25 February 2014 * Headquarters, Dwight David Eisenhower Army Medical Center memorandum regarding MEB procedures, dated 26 February 2014 * Headquarters, Dwight David Eisenhower Army Medical Center memorandum regarding MEB election and appeal procedures, dated 28 February 2014 * Headquarters, Dwight David Eisenhower Army Medical Center memorandum regarding right to counsel, dated 28 February 2014 * DA Form 5893 (Soldier’s MEB/PEB Counseling Checklist), dated 28 February 2014 * partial 2014 Officer and Warrant Officer Selective Retention Board document, undated * self-authored memorandum, dated 25 October 2013 * VA Medical Center doctor’s letter, dated 16 October 2013 * VA Return to Work Statement, dated 24 October 2013 * VA medical record, dated 24 October 2013 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 August 2013 * Headquarters, Dwight David Eisenhower Army Medical Center memorandum regarding MEB, dated 25 March 2014 * Headquarters 220th Special Troops Battalion memorandum regarding behavioral health profile and future drills, dated 3 May 2014 * numerous pages of applicant’s request to the Federal Bureau of Investigations (FBI) Internet Crime Complaint Center regarding phone hacking * self-authored resume * Equal Employment Opportunity (EEO) email correspondence, dated April – May 2013 * Department of the Army (DA) Office of the Inspector General (OTIG) email correspondence, dated September 2013 * self-authored letter addressed to MO State Governor, dated 20 November 2012 * self-authored letter addressed to multiple elected officials, dated 14 February 2013 * resume of M____ F____, undated * MOARNG Institutional Discrimination Independent Study, dated 18 June 2009 * email correspondence, dated January 2017 * DA Form 3349 (Physical Profile), dated 9 December 2013 * DD Form 2808, dated 1 August 2013 * DD Form 2807-1 (Report of Medical History), dated 1 August 2013 * numerous pages of additional medical documents * USAPDA Order, dated December * self-authored statement, dated 3 December 2019 * Joint Force Headquarters memorandum regarding proposed adverse action, dated 23 October 2012 * untitled, undated spreadsheet regarding adverse action * email correspondence pertaining to security clearance renewal, dated 6 May 2013 * partial IG Action Request packet, including DA Form 1558 (IG Action Request) dated 20 November * U.S. Court of Federal Claims Order Number, dated July * U.S. Court of Federal Claims Case Number , Exhibit Description for Exhibits * U.S. Court of Federal Claims Case Number applicant’s self-authored statement, dated * U.S. Court of Federal Claims Case Number Exhibits (some of which are duplicates to the above listed supporting documents, thus not listed twice and some of which are new and listed below) * partial copy of DA Pamphlet 135-381 (Incapacitation of Reserve Component (RC) Soldiers Processing Procedures) * MOARNG letter to Member of Congress, dated 17 May 2012 * DA Form 3349, dated 2 October 2013 * St. Louis VA Medical Center letter, dated 26 November 2013 * email correspondence regarding MEB and INCAP submission, dated 4 December 2013 * email correspondence regarding INCAP appeal, dated 3 April 2014 * email correspondence regarding certificates, dated 17 February 2015 * Headquarters, MOARNG Orders 179-172, dated 27 June 2008 * Headquarters, MOARNG Orders 162-038, dated 11 June 2009 * Position Description Amendment, dated 5 January 2009 * Standard Form 50 (Notification of Personnel Action), dated 14 August 2011 * email correspondence regarding USERRA, dated 21 March 2010 * Department of Labor letter, dated 22 August 2012 * email correspondence regarding USERRA, dated 22 and 24 August 2012 * Presidential Nominations, 112th Congress (2011-2012) * self-authored letter to the Secretary of the Army, dated 26 November 2012 * self-authored letter to General F____ G____, dated 26 November 2012 * self-authored letter to Senator M____, dated 26 November 2012 * self-authored letter to Senator Blunt, dated 26 November 2012 * self-authored letter to Representative C____, dated 26 November 2012 * email correspondence regarding MOARNG corruption, dated 15 February 2013 * partial 21 July 2016 article from slttoday.com titled, “Ex-Missouri Veterans Ombudsman wins Lawsuit against Veterans Commission Head” * Department of Defense Instruction (DoDI) Number 1241.01 (Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements) * Department of Defense Directive AD-A269 507 (Reserve Components Incapacitation Benefits), dated 3 December 1992 * email correspondence regarding Veterans Commission, dated 30 December 2016 * text message, dated 17 January 2017 * MO Executive Order 17-10, dated 7 April 2017 * NPR article, dated 29 May 2018, titled, “Missouri Governor Eric Greitens Resigns” * The Kansas City Star article, dated 1 June 2018, titled, “Greitens and 19 Staffers had Secret Texting APP, Far More than Number Reported to AG” * MO Governor’s resignation, dated 1 June 2018 * Ministerial Pension Plan statement, dated 13 June 2014 * TSP statement, dated 30 June 2013 FACTS: 1. On 28 June 2019, the U.S. Court of Federal Claims received the Government’s unopposed motion for voluntary remand and stay of proceedings, filed in the U.S. Court of Federal Claims in Civil Action Number 19-626C. On 3 July 2019, the Court granted the Government’s motion for good cause shown, to allow the Army Board for Correction of Military Records (ABCMR) to take final action on the applicant’s pending claim before the ABCMR. The Court also adopted the Government’s proposals, as laid out below: a. The Government shall promptly forward the applicant’s most recent exhibits and timeline filed in this case to the ABCMR for consideration in his pending claim before the ABCMR. b. The ABCMR shall afford the applicant relief that the ABCMR determines he is entitled to receive, if any, and to issue a decision explaining in detail the rationale supporting its final decision. c. Unless the matter is sooner dismissed, the parties shall file a status report with the Court through the Government’s counsel within 14 days of a decision by the ABCMR, describing the need for and proposed schedule for any additional proceedings. d. If the ABCMR has not issued a decision by Monday, 30 December 2019, the ABCMR shall file a status report with the Court submitted through the Government’s counsel describing the status of the ABCMR’s consideration and when it expects to issue a final decision on Monday, 30 December 2019. 2. The applicant states: a. On 9 February 2013, he had problems with his iPhone, which included hacking into his accounts associated with number and his email account. He called AT&T Global Fraud Department and spoke with a Ms. R___ W____ who informed her that his account was hacked, but stated she could not tell him who did the hacking. He asked her if he suspected an organization, could she confirm who it was and she said yes. He told her it was the MOARNG Cyber team and she responded yes. b. Ms. R____ W____ told him to call the FBI’s St. Louis Internet Crime Center, which he subsequently did and spoke with Agent S___on 12 February 2013, who took his information and said he would call Ms. R____ W____ at the AT&T Global Fraud Department. He was directed to fill out an Online Complaint Form and they would follow up. He has provided email correspondence regarding this incident at attachment 15. c. On 14 March 2013, he was asked by Col D____ B____, then Chief of Staff, with Chaplain COL G____ G____, to resign or be terminated (constructive termination) from his full-time GS12 ARNG dual status military technician Federal position as a Chaplain, the first MOARNG Chaplain in the nation. The State Judge Advocate General (JAG) COL B___ was not invited to the meeting because when she was previously asked to suspend him of his pay for 3 months, she investigated and found only one time in Chaplain COL G____’s 18 allegations that he (the applicant) spoke to him disrespectfully. This meeting was held in Jefferson City, MO and by the time he was escorted back to his office in St. Louis, MO, his computer had been wiped and his hard drive had been remotely cleaned of everything. He has not worked since April 2013 when he was forced to resign. d. He initially submitted his INCAP pay (Tier 1) packet to his unit on 23 December 2013 and requests INCAP back pay from that point forward. His medical retirement orders are dated 16 December 2014 and he was placed on the Permanent Disability Retired List (PDRL) on 20 January 2015. He was placed on the PDRL with a 70 percent disability rating for the co-morbid conditions of post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) during a period of war. He was denied INCAP pay, but should have been paid the full INCAP pay (Tier 1) active duty pay and allowances totaling nearly $ as well as the drill payment money he had to repay to DFAS while he was going through IDES until his retirement on 20 January 2015. He does not specify the dates of the drills or the amount of the repayments. In another calculation of his estimated compensation due, he states he is due over $, which does not include the time from April 2013 to August 2013. e. An additional injustice was how long it took from his retirement orders being cut on 16 December 2014 until his NGB Form 22 was prepared on 19 January 2015 and finally emailed to him on 18 February 2015. He provided email correspondence at attachment 3, dated 18 February 2015, which shows he asked why it took so long and no response was given. It should not have taken 2 months to process a form that should take about 2 hours to create. f. He has exhausted every administrative option available to him to receive the INCAP pay at the Tier 1 level, which should have afforded him full military basic pay and allowances at the rank/grade of LTC/O-5 (Chaplain) with over 28 years of service. See attachment 5 with the Army Basic Pay and Allowances charts. He should have received INCAP pay while he was going through the IDES process until he was either returned to military duty and/or civilian employment, received a determination of not in the LOD, was discharged from the service, became deceased, or was retired. He provided a copy of the ARNG G1 Personnel Gateway description of the INCAP process at attachment 6. g. The administrative processes he followed included communicating with his unit and chain of command, following the guidance of his PEB liaison officer (PEBLO), R____ C____, following the guidance of the Military Service Coordinator A____ G____, contacting the Soldier and Family Hotline and Ombudsman, Sergeant Major (SGM) R____ G____, following the medical guidance of his PTSD Clinical Team, VAMC medical team and Veterans Center team, following the advice of the Army G1 Chief of Compensation and Entitlements Division as well as an analyst in that section. Ultimately, the NGB Deputy Chief of the LOD office, E____ S____ told him he was entitled to INCAP pay and was going to tell his unit exactly how to input his INCAP pay packet into the system based on his LOD statements. h. He believes the injustice of denying him INCAP pay was intentional on the part of his unit. His then unit commander, LTC R____ S___ along with MOARNG senior headquarters staff, his chain of command, Major General (MG) S____ D__O__ and his Chief of Staff, Colonel (COL) D____ B____ refused to listen to anyone despite all of his supporting documentation, to include numerous emails, medical evidence, his input into his Commander’s Statement, dated 25 October 2013, MEB/PEB results and phone calls from his Ombudsman SGM R____ G____ and PEBLO R____ C____. i. On 26 February 2014, he received his MEB Proceedings and agreed to their findings and on 21 March 2014, he received his PEB request for rating and was found physically unfit to continue military service for PTSD with co-morbid MDD. On 24 March 2014, he received his VA combined disability rating of 100 percent. j. Not only did his unit intentionally deny him his INCAP pay, but they violated his Health Insurance Portability and Accountability Act (HIPAA) rights when LTC R____ S____ and Major (MAJ) B____ M____ called his MEB doctor, Dr. A____ B____ to try and persuade her and the VA to change their diagnosis of PTSD to force him to attend drill. He included Dr. A____ B____’s memorandum dated 25 March 2014, at attachment 13. Even the new Commander, LTC J____ J____, after talking with LTC R____ S____ and the MOARNG health providers threatened him with absence without leave (AWOL) and suspension of the PEB process in a memorandum dated 3 May 2014 and found at attachment 14. k. Please keep in mind, the MOARNG, to include his unit, despite talking to the U.S. Army Medical Command and the NGB LOD office and even after receiving his MEB and PEB findings of unfit for military service as of 6 January 2014, tons of medical evidence, and after 30 years of service on his part, did not see fit to pay his INCAP pay when he could not work and did not process his INCAP pay appeal packet, did not issue his NGB 22 until months after they received his retirement orders so he could get his Army retirement pay, did not offer him a retirement party or ceremony, said his military awards were lost in the mail and pushed him to the brink of suicide and financial ruin. This is the essence of injustice and evil. l. On 24 September 2016, he had a conversation with Lieutenant Colonel (LTC) S____ B____, who was the full-time Equal Opportunity Advisory for the MOARNG before he retired. He had not seen her in years and she congratulated him on his retirement and on receiving his INCAP pay while he was processing through the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). He informed her that he did indeed retire, but did not at any time receive INCAP pay. m. On April, he filed a claim with the U.S. Court of Federal Claims for payment of $, of which $ is for military pay entitlements including INCAP pay from 4 May 2013 to 20 January 2015, Basic allowance for Housing, Basic Allowance for Subsistence, repayment of $ for his United Methodist Church early pension withdrawal, and $ for his TSP early withdrawal to include penalties. n. In his U.S. Court of Federal Claims filing, he states he initially claimed the condition of PTSD on October, but was not found unfit for military service for this condition until 24 March 2014 and was retired due to physical disability effective 20 January 2015 after completing the IDES process. His retirement pay from the ARNG is offset from the VA Disability System until his 58th birthday on , when his 2 years of active duty are applied to reduce his 60 year ARNG retirement eligibility date. He has received back-pay and entitlements due to his disability from the VA and Social Security Disability Insurance (SSDI). He has not received INCAP pay (Tier 1) and military back-pay. o. He was a dual status military technician serving as a GS 12 Chaplain with the MOARNG at the State headquarters in Jefferson City, MO, since February 2002 and was one of the first full-time ARNG Chaplains under a Governor in the nation. The MOARNG retaliated against him for whistleblowing by intentionally failing to properly process his INCAP pay to the US. Army and continued to aggravate his unfitting condition of PTSD, despite an abundance of medical documentation. The MOARNG ordered him to attend inactive duty training (IDT) drills, which further aggravated his conditions. p. The MOARNG violated Army Regulation 135-381 (Army National Guard of the United States and Army Reserve – Incapacitation of Reserve Component Soldiers) in that the policy states * incapacitated Soldiers should receive INCAP benefits until administrative processing is complete and final status is determined * informal LOD determinations should be completed within 15 calendar days; formal investigations, when required, should arrive at the NGB for determination within 45 calendar days * the Adjutant General may approve INCAP pay for the first 6 months; approval authority beyond 6 months is with the NGB. INCAP pay should be paid within 30 days and in no event later than 45 days. q. The MOARNG violated DoDI 12401.01, as it states since VA benefits are not taxable, they do not meet the definition of earned income. INCAP pay will not be offset by VA benefits received. r. Title 37, U.S. Code states, in pertinent part, the objective of the INCAP Benefit system is to compensate members of the RC who experience incapacitation or loss of civilian earnings as a result of an injury, illness, or disease incurred or aggravated in the LOD and provide the required medical and dental care associated with incapacitation. Members unable to perform full military duties due to incapacitation under the circumstances described above are entitled to full pay and allowances, including all incentive and special pay to which entitled, less any civilian earned income for the same period as incapacitation pay is received. For establishing fitness to perform military duties, a RC member shall be determined to be unable to perform military duties if, under Service procedures, the member would be determined to be medically unfit for worldwide (deployable) duty. An interim LOD is intended to ensure that incapacitation pay can be started without the delay inherent in awaiting a final approved LOD determination. s. The law further states the Secretary concerned shall ensure that members in inactive duty training (IDT) status and who become entitled to INCAP pay shall begin receiving their pay within 30 days of the notification of the injury, illness, or disease. After his resignation (wrongful termination) as a GS11 Step 10 Chaplain on 20 April 2013, the first IDT date was on 4 May 2013. t. The MOARNG delayed, denied, and did not properly process his initial INCAP pay application and appeal packets because of whistleblower retaliation. On 1 August 2013, Dr. W____ H____, a military medical doctor on weekend IDT at MO Joint Force Headquarters found him unfit for continued military service (see exhibit 1 of the court filing) and immediately referred him to the IDES for processing. Per Army Regulations, INCAP pay should start within 30 days of this notification, but the MOARNG failed to ensure his INCAP pay commenced within 30 days of this notification. u. The MOARNG was also provided additional documentation and notification of his aggravation of injury, to include a DA Form 2173, dated 23 August 2013 and a 16 October 2013 statement from a VA PTSD Clinic attesting to his presentation to the clinic on 2 August 2013. On 3 September 2013, he sent another notification by email to his unit commander, LTC R____ S___ detailing the aggravation of his PTSD and referral into IDES. On 10 September 2013 he received a LOD determination from the NGB and sent it to the MOARNG which serves as further documentation for INCAP pay. v. On 16 September 2013, he sent a complaint against the MOARNG to the OTIG of additional Whistleblower Retaliation. At exhibit 5 he included his email traffic with the OTIG as well as included a letter from MOARNG BG J____ R____ to his U.S. Senator, dated 17 May 2012 addressing these complaints as already having been received and being processed with their organization. w. He forwarded to the MOARNG many additional documents that should support his INCAP claim. On 2 October 2013, he received his permanent physical profile from the MOARNG Headquarters and forwarded it. He additionally received and sent on 16 October 2013, a letter co-signed by a VA staff psychologist and physician and attesting to his mental health diagnoses. On 24 October 2013, he sent VAMC Emergency Room visit notes and on 25 October 2013, he sent a formal letter to his commander, as part of his input into the commander’s statement for his MEB. On 9 December 2013 he forwarded another permanent physical profile. x. On 23 December 2013, he sent his initial INCAP pay application and it was not denied until 8 February 2014. He included the denial in exhibit 13. Please note that this denial of INCAP pay is in violation of all INCAP laws, regulations, procedures, directives, common sense and is clear retaliation. He worked at MOARNG since February 2002 as a dual status military technician Federal Chaplain and an IDT drilling Soldier with a spotless record until his return from active duty on 1 July 2010. y. On 26 February 2014, he forwarded documentation of his MEB proceedings to the MOARNG Joint Force Headquarters and on 5 March 2014 submitted his INCAP pay appeal packet to the MOARNG for processing through the NGB LOD office and ultimate approval by the Army G1, Compensation and Entitlements Division Chief, Mr. L____ L____. z. On 6 March 2014, he wrote an email to his MEB team stating he was overwhelmed by the stress the MOARNG was placing on him and requested his packet be expedited. He included the email correspondence at exhibit 16. On 21 March 2014, the PEB determined he was unfit to continue military service because of his conditions of PTSD with comorbid MDD and he forwarded this to the MOARNG. Note that he was declared unfit at every level of the U.S. Army and should have been paid his INCAP claim. ON 24 March 014 he received his combined disability rating of 100% and forwarded it to the MOARNG. aa. On 25 March 2014, he was called by his PEBLO, Ms. R____ C____ and informed that his unit commander, LTC R____ S____ had called his U.S. Army doctor A____ B____ and tried to get her to change her diagnosis of his PTSD. He included at exhibit 19 a copy of Dr. A____ B____’s email to the MOARNG Headquarters in response to this conference call. bb. On 3 April 2014, he emailed his medical team, to include his psychologist Dr. S____ B____ that he had just gotten off the phone with the U.S. Army G1 Chief of Compensation and Entitlements Division, retired COL L____ L____, who was the approval authority for INCAP pay and a program analyst, Mr. D____ A____. Mr. L____ and Mr. A____ were both concerned and disturbed about his INCAP pay processing and stated they would call LTC R____ S____ directly and immediately see why she didn’t process his claim appropriately. He had a later conversation with LTC S____ B____ who was the EO officer at the MOARNG Joint Fore Headquarters, and she informed him she was on the conference call with LTC R____ S____ and the full-time Deputy State Surgeon MAJ B____ M____ when they talked to the Pentagon Chief of Compensation and Entitlements Division, Mr. L____ L____ and were “ordered” to process his INCAP pay. Needless to say, that never happened. cc. On 3 May 2014, his new unit commander, LTC J____ J____, after speaking with LTC S____, threatened him with being declared AWOL if he did not go to a behavioral health assessment, attend drill, and be counseled by him. This is in violation of Whistleblower Retaliation laws put forth in DoDI 6490.4, which states no person may refer a service member for a mental health evaluation as a reprisal for making or preparing a lawful communication to a Member of Congress, any appropriate authority in the chain of command, an IG, or a member of a DoD audit, inspection, investigation, or law enforcement organization. He did not return to his unit at the MOARNG Headquarters after that. dd. On 16 December 2014, he received his retirement orders placing him on the PDRL. His physical disability retirement is different from his INCAP packet, which entitled him to active duty pay and allowances during the period of his incapacitation and in a military duty status, prior to retirement. ee. His PTSD injury occurred during his combat time in Iraq, but his aggravation of it started when he had “protected communications” with the then MOARNG Chief of Staff in March 2010, which resulted in negative personnel actions as whistleblower retaliation, but reached its height when he was asked to resign or be terminated effective 20 April 2013. ff. The whistleblower retaliation actually began when he was on Active Duty for Special Work (ADSW) at the NGB in Arlington, VA as a Chaplain, from 1 July 2008 through 20 June 2010. Unbeknownst to him, and in violation of USERRA laws, he was moved from his dual status military technician Federal position as a Chaplain in the rank of GS 12, Step 4 and placed in a lower grade of GS 11, step 10, with lesser responsibilities on 5 January 2009. gg. On 21 March 2010, just a couple of months prior to returning to his full-time Chaplain position in Jefferson City, MO, he had conversations with COL (P) W____ H____ at MOARNG Headquarters about being placed in different Chaplain position with a lower grade with lesser responsibility in St. Louis, MO. He was told that it would help him be with his family and without the 2-hour commute to Jefferson City, MO. He was told COL Chaplain G____ G____ was placed in this GS 12 Chaplain position temporarily. He wrote the email to COL (P) H____ and COL Chaplain G____ G____. and informed both of them that they were in violation of the USERRA law and his rights had been abridged. hh. On 22 August 2012, after communicating with many people and organizations about this particular whistleblower retaliation, he spoke with the U.S. Department of Labor (DOL) who submitted his case to LTC J____ K____, a full-time attorney (JAG) for the MOARNG Joint Force Headquarters for response. He received an email response from Director W____ B____ and LTC J____ K____ on 24 August 2012 about a USERRA statute of limitations, but for whatever reason, his whistleblower retaliation started before his return to his dual status military technician Federal position as a GS 12 on 1 July 2010. ii. On 20 November 2012, he submitted multiple DA Forms 1559, requesting OTIG action for the retaliation he faced since returning from active duty. On or about that same date, he submitted packets of documentation to the then MO Governor and other elected officials about corruption in the MOARNG Headquarters, to include discrimination, retaliation and abuse of power. See exhibits 31. jj. On 15 February 2013, he sent evidence of corruption written by a friend, retired LTC M---- F_____ to P____ K____, also a friend and former State Ombudsman who had filed a lawsuit against BG L____ K____ and eventually won $ in damages and $ in punitive damages in court on 20 July 2016. kk. He was asked to resign or be terminated from his full-time Federal technician position effective 20 April 2013, and became eligible for INCAP pay on 4 May 2013. ll. He emailed the OTIG office and the FBI, St. Louis Office on 12 September 2013, after an AT&T Global Fraud Investigation which began on 8 February 2013, informed him his AT&T account had been hacked. mm. On 3 December 2019, he wrote to the ABCMR to clarify his claims with the ABCMR and U.S. Federal Claims Court Case number , remanded to the ABCMR on . He wrote exactly 1 month and 1 day since, as a friend and Chaplain, he eulogized his friend retired LTC M____ F____, whom he had previously discussed in submitted paperwork as being one of the Soldiers who faced retaliation from the MOARNG along with him. He believes the DAIG’s office combined M____ F____’s IGAR request with his own some 7 years ago. nn. This letter reiterates most of the same claims put forth in his original application to the Board as well as his claim filed in U.S. Federal Claims Court, remanded to the Board and detailed above and will not be duplicated below. He additionally now states the requested corrections to his military records and Federal civilian service records as a dual status military technician include back pay, lost benefits, and pension payments due to injustices that began on 5 January 2009 and did not end until his retirement on 20 January 2015. His request for relief incident to his claim is now for at minimum $. oo. During a discussion with LTC S____ B____ on 24 September 2016, she was adamant she thought he had received INCAP pay because she had been on a conference call with Mr. L____ L_____, Army G1, where he directed LTC S____ to correctly submit his INCAP pay packet. It was then that he realized the MOARNG under MG S____ D____ willfully and intentionally discriminated and reprised against him. pp. Further, he believes that General F____ G____ (the first 4-Star General in the ARNG), who is from MO and a friend to MG D____ and long-term mentor to then Colonel (P) and now MG W____ H_____, conspired with the MOARNG to cover up and/or suppress the corruption and injustices. He does not know how far this cover up has permeated the NGB in Arlington, VA. qq. From 25 September 2016 onward, he has researched to find all possible options for recourse to the injustices done to him. He submitted his application to the ABCMR with receipt by the Board on 5 January 2017, yet he has not received a decision from the Board in over 2 years from his date of submission. He did not want to let the 6-year statute of limitations for monetary claims be surpassed, so he submitted his lawsuit to the U.S. Court of Federal Claims on 19 April 2019. He has not been employed since his resignation (constructive termination) on 20 April 2013. Constructive or wrongful termination is defined in employment law as when an employee resigns as a result of the employer creating a hostile work environment for the employee, as was the case for him. rr. He is vested with the U.S. Office of Personnel Management (OPM) with nearly 17 years of Federal civil service. He has requested his FERS Deferred Annuity Retirement as of his 56th birthday on, but believes he is qualified for the FERS Disability Retirement as his injury was intentionally aggravated by the MOARNG. MG S____ D___, with whom he deployed to Balad, Iraq, COL (P) W____ H____, and COL Chaplain G____ G____ and others willfully and intentionally conspired against him and aggravated his PTSD. ss. He hopes to provide a better context for what he calls the unparalleled corruption of the MORARNG under MG S____ D____ that he personally witnessed because it happened to him, but also because he was told about other violations by Soldiers whom he counseled as a Chaplain since August 1996. tt. He reiterates his multiple claims, stating on 5 January 2009, the MOARNG discriminated against him by changing his GS 12 Chaplain position description. On 1 July 2010, he returned from active duty at the NGB and the Escalator Principle was violated, in that a returning service member does not step back on the seniority escalator (of his previously occupied civilian positon) at the point where he stepped off but steps back on at the precise point he would have occupied had he kept his position continuously during his military activation. Under this premise he is claiming back pay and "from pay" for his civilian Federal position from July 2010 through January 2015 amounting to $, plus 6% interest. In total, he states he is owed approximately $. uu. Please note that double or treble damages are warranted for willful violation of the law and that is what he believes this was. On 3 July 2012 he provided MG D____ the Adjutant General of MOARNG, BG J____ O____ and COL E____ S____, then the MOARNG IG and other a document he authored, titled “A Green Paper on Missouri National Guard Leadership, Diversity, and Discrimination” on leadership, diversity and discrimination based on the NGB Leader’s Guide to Diversity and their Virtual Diversity Conference, and provided a portion of the paper at attachment 1. vv. He states before his constructive termination in April 2013, then COL L____ B____ headed an investigation of him in March 2013, instigated by his then supervisor COL G____ G____, who had been placed above him upon his return from activation. She hand-carried some of the investigation findings to him because she thought MG S____ D____ and then COL B____ did not want her to do the investigation, they had begun to retaliate against her, and she thought they would destroy the documents. She stated they forced her to retire and the COL B___ stated Chaplain G___ would have to pay to God for what he did.” He provided some of the investigation documents in attachment 2. ww. In this letter he tabulates his INCAP back-pay to equal a total of $, including 6% interest, from 4 May 2013 (the first drill date after his civilian constructive termination through his retirement on 20 January 2015 or alternately from 19 October 2012 (his first PTSAD claim date) through retirement on 20 January 2015. xx. He additionally claims the MOARNG treated him with cruelty, oppression, and maltreatment from 1 July 2010 until 20 January 2015 when he retired. He restates the MOARNG withheld his NGB 22 after his retirement orders were cut, thereby essentially withholding his military medical retirement pay. Further LTC J____ K____ the full-time JAG initiated an Incident Report to his Security clearance File with the Central Clearance Facility which will remain in his file for 25 years. yy. His final claim not previously expounded upon is that the MOARNG conspired to defraud the U.S. Army and the ARNG by providing false, fraudulent, and deceitful information to cause disruption to its disability evaluation and benefits systems 3. The applicant’s requests for FERS disability retirement vice approved request for deferred annuity retirement at age 56, to include FERS retired back-pay totaling $ and Federal civilian employment back-pay from 1 July 2010 to 19 January 2015 of $ for his GS12, Step 4 dual status military technician Federal position reclassified as GS11, Step 10 do not fall under the purview of the ABCMR, but rather the Office of Personnel Management. Likewise, his requests for repayment of his United Methodist Church Early Pension withdrawal of $, repayment of his TSP early withdrawal including Federal tax penalties of $ do not fall under the purview of the ABCMR. 4. After a prior period of enlisted service in the U.S. Air Force, the applicant was appointed as a Reserve Commissioned Officer of the Army on 22 December 1990. He was appointed as a second lieutenant in the ARNG on 31 May 1991. 5. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty in support of Operation Iraqi Freedom with service in Iraq from 16 June 2005 through 2 September 2006. He was honorably released from active duty after 1 year, 2 months, and 17 days of net active duty this period, due to the completion of required active service and released to his ARNG unit. 6. The applicant provided Headquarters, MOARNG Orders 179-172, dated 27 June 2008 ordering him to Active Duty for Special Work (ADSW) from 1 July 2008 through 30 June 2009 as a chaplain project officer at the ARNG Readiness Center in Arlington, VA. He also provided Headquarters, MOARNG Orders 162-038, dated 11 June 2009 ordering him to Active Duty for Operational Support, RC (ADOS-RC) from 1 July 2009 through 30 June 2010 as a chaplain project officer at the ARNG Readiness Center in Arlington, VA. 7. A second DD Form 214 shows he honorably completed a period of ADOS-RC with the MOARNG from 1 July 2008 through 30 June 2010 and was transferred back to his MOARNG unit after 2 years of net active duty this period. 8. The applicant provided a partial Position Description amendment for the classification of position number for a Chaplain position in the NGB under the GS pay plan at grade 11, dated 5 January 2009. 9. He provided email correspondence, dated 21 March 2010, where he provided a copy of USERRA to COL W____ H____, informing of his reemployment rights upon return from his period of ADOS to a GS12, step 5 position. 10. An NGB memorandum, dated 20 September 2010, shows the applicant’s chronic lumbosacral strain and chronic lumbago that occurred during a period of active duty was approved as in the LOD - existed prior to service - service aggravation - this episode only. 11. The applicant provided an SF50 showing effective 14 August 2011, he was changed to a lower grade, level or band in that he was moved from a GS12, step 4 position as chaplain, in the MO Adjutant General, MO Joint Force Headquarters, Command Administration Office to a GS11, step 10 position as chaplain in the MO Adjutant General, Mo Joint Force Headquarters, Construction and Facilities Management Support Office with duty at St. Louis, MO. The remarks state management directed reassignment; technician concurs with reassignment. 12. The applicant provided a letter from MOARNG Assistant adjutant General BG J____ R____ to a U.S. Senator representing MO, dated 17 May 2012, which was in response to his letter containing various complaints by the applicant against COL W____ H____ and Chaplain COL G____ G____ of the MOARNG. He assured the Senator the applicant had already filed these complains with the MOARNG Joint Force Headquarters and they were being processed in accordance with applicable regulations and laws. 13. The applicant provided a document he authored, titled “A Green Paper on Missouri National Guard Leadership, Diversity, and Discrimination” dated 3 July 2012 which states initial reviews of the MOARNG Joint Force Headquarters Command Climate Survey, dated 30 June 2012, by MG S___ D____ showed perceived discrimination which the applicant felt was eroding the moral foundation of the unit. 14. A letter from the U.S. Department of Labor, Office of the Assistant Secretary for Veterans’ Employment and Training Service (VETS) to LTC J____ K____ of MOARNG Joint Force Headquarters, dated 22 August 2012, states the applicant requested assistance in determining and exercising his reemployment rights under USERRA as well as alleging retaliation for exercising his USERRA rights. The Department of Labor VETS representative requested the circumstances and details surrounding the decision to not reinstate the applicant to his State Chaplain positon at the Headquarters. 15. Follow-up email correspondence between a Department of Labor, VETS representative and LTC J____ K____ shows they were arranging a follow up meeting for later in August 2012 to discuss the allegations and come to a resolution of the complaint. Further email correspondence between these two individuals shows the Department of Labor, VETS representative informs LTC J____ K_____ that although there is no statute of limitations in an action under USERRA, at least one court has held that with regard to USERRA actions that if an individual unreasonably delays asserting his/her rights under USERRA and that unreasonable delay causes prejudice to the employer, the courts have recognized the availability of the equitable doctrine of laches to bar a claim under USERRA. This response was prompted by LTC J____ K____ asking about USERRA time limits, since the applicant’s alleged violation occurred over 2 years prior. 16. The applicant has not provided information regarding the outcome of the August 2012 meeting between Department of Labor and the MOARNG regarding his USERRA claim, but it is presumed from the provided evidence that resolution was achieved without the requirement for his reinstatement to his prior GS 12 position. 17. The applicant provided an untitled, undated spreadsheet of unknown source that appears to detail adverse action the applicant’s supervisor, COL G____ G____ claims the applicant engaged in between March 2012 and June 2012. 18. The applicant provided a MOARNG Joint Force Headquarters memorandum, dated 23 October 2012 and signed by COL L____ B____ which shows the following: * on 20 August 2012, the applicant’s first- line supervisor, Chaplain COL G____ G____ proposed his suspension from his technician employment as a State Area Chaplain for a period of 15 days * the memorandum does not specify the committed offenses or the evidence provided * the applicant provided written replies to the proposed adverse action which were considered * COL L___ B____ was the deciding official for this adverse action and after careful review of all documentation and facts surrounding this matter, decided to dismiss all proposed adverse action 19. The applicant provided a DA Form 1559, dated 20 November 2012, wherein he requested IG action into his allegations of reprisal to include Equal Opportunity (EO) discrimination (racial and religious), and retaliation in violation of the Military Whistleblower Protection Act. Along with the DA Form 1559, the applicant enclosed 9 pages detailing his claimed EO and retaliation timeline. The outcome of his IGAR is not in his available records for review. 20. The applicant provided numerous letters he composed in November 2012 and addressed to the MO Governor, Secretary of the Army, Chief, NGB, and multiple U.S. Senators and U.S. Representatives, all of which speak to his claims of discrimination, whistleblower reprisal, abuse of authority, fraud, and mismanagement in the MOARNG and a then impending complaint resolution meeting between himself and senior members of the MOARNG. 21. Per the applicant, he resigned from his civilian Federal position under duress on 20 April 2013. A copy of his resignation is not in his available records for review and the applicant has not provided a copy. 22. He provided a copy of multiple pages of email correspondence between himself, officials in the MOARNG Intelligence office, and that he sent to the OTIG email box between April and May 2013, regarding the renewal of his security clearance and a DA Form 5248-R (Report of Unfavorable Information for Security Determination) uploaded to Central Clearance Facility regarding the applicant, subsequent to an Army Regulation15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation. Neither the DA Form 5248-R nor the results of the investigation are in the applicant’s available records for review. 23. He provided a copy of his quarterly TSP statement for the period 1 April 2013 through 30 June 2013, which shows he withdrew a total of $ from his TSP account on 22 May 2013, leaving him with a balance of $ on 30 June 2013. 24. The applicant’s records contain the following sets of annual training (AT) orders: a. Headquarters, MOARNG Orders, dated 13 May order the applicant to annual training in, MO from, for the purpose of attending a clergy summit. The accounting classification on the orders show his payment estimate was $. b. Headquarters, MOARNG, dated 28 May order the applicant to annual training in, MO from 6- 10 June, for the purpose of providing chaplain support. The accounting classification on the orders show his payment estimate was $. c. Headquarters, MOARNG Orders, dated 2 August order the applicant to annual training in, MO 1 -1 August, for the purpose of administrative medical management activities. The accounting classification on the orders show his payment estimate was $. 25. A DD Form 2808, dated 1 August 2013, shows he underwent a medical examination on the date of the form. The document shows the examiner, Dr. H____ marked the applicant was qualified for service and struck through that annotation, initialing the strike through, and marking he was not qualified for service. The form also shows appears to show he was given a PULHES (physical capacity, upper extremities, lower extremities, hearing/ears, eyes, psychiatric) physical profile of 212112 that was modified to show 312113. 26. A DA Form 2173, dated 23 August 2013, shows the applicant was examined by a staff psychologist at the St. Louis VA Medical Center on 2 August 2013, while on duty. He was found to have manifested anxiety as a result of his experiences in Iraq in 2006. The reason for the lateness was his anxiety did not develop until after his deployment. His injury was determined to have been incurred in the LOD. 27. He provided an email he composed to his commander, LTC R____ S____, dated 3 September 2013, wherein he informed her he underwent a physical examination on 1 August 2013, where he received a permanent physical profile rating of 3 in physical capacity and psychiatric and that the process to medically remove him from the military had begun. He requested removal from his current unit as soon as possible and placement in the MMA. 28. An NGB memorandum for the Joint Forces Headquarters, MOARNG, dated 10 September 2013, states the applicant’s anxiety disorder that occurred during Operation Iraqi Freedom as documented in a DA Form 2173, was approved as occurring in the LOD. 29. The applicant provides an email he sent to the FBI Internet Crime Complaint Center, dated 13 September 2013, wherein he details suspected claims of hacking into his telephone and email accounts on 9 February 2013 by the MOARNG Cyber Team or someone in the computer department associated with the MOARNG. On 12 September 2013, he states he received evidence from the AT&T Global Fraud Department, Ms. R____ W____ of the hacking and he believes the hacking is in retaliation for a Federal Whistleblower Reprisal complaint he filed. He also provided an email he composed to the OTIG informing them of the account hacking. The applicant does not provide evidence of the AT&T Global Fraud Department confirmation of the hacking nor the outcome to his FBI Internet Crime complaint. 30. A DA Form 3349, dated 2 October 2013, shows he was diagnosed with the medical conditions of hypertension with stage 3 renal disease, sleep apnea, lumbar spine degeneration, bilateral pes planus with osteoarthritis, tinnitus, and PTSD. He was given a PULHES physical profile of 312113, with a permanent physical profile rating of 3 for physical capacity and psychiatric and a note that he required an MEB. Under functional activities, the form shows he could wear military boots and uniform for at least 12 hours per day and was unable to participate in all other functional activities to include the Army Physical Fitness Test. 31. A letter signed by a staff psychologist and staff physician from the St. Louis, MO, VAMC, dated 16 October 2013, states they were writing on behalf of the applicant to verify he presented for an evaluation at the St. Louis, MO, VAMC PTSD Clinical Team on 2 August 2013. It further states the applicant was diagnosed with anxiety disorder, not otherwise specified and major depressive disorder and was currently followed by psychology and psychiatry to address these symptoms. 32. A VA Medical Record, dated 24 October 2013, shows the applicant presented to the ST. Louis MO, VA emergency room at 1331 hours where he was diagnosed with panic disorder. He was discharged at 1621 on the same date in stable improved condition and given prescription medication. He was advised to follow up with his primary care provider and to continue working on reducing stress. 33. A 24 October 2013 VA Return to Work Statement, shows the applicant was seen in the emergency room with a diagnosis of panic attack. His symptoms improved with Alprazolam (medication used to treat anxiety) and he was discharged with Zoloft (medication used to treat anxiety) and Propranolol (medication used to treat hypertension). 34. The applicant provided a self-authored memorandum dated 25 October 2013 and addressed to his commander, LTC R____ S____, wherein he stated: * he had four clinically diagnosed disorders that were supported by treatment notes, therapies, LODs and medical exams, including anxiety disorder, panic disorder, PTSD, and major depressive disorder for which he was prescribed medication * he also had a number of other medical conditions to include sleep apnea, flat feet with severe osteoarthritis, chronic back spasms, and chronic kidney disease * he faced command and unit intentional reprisal and retaliation since his return from active duty in July 2010, which caused him to distrust the military * his referred Officer Evaluation Reports show he has not consistently worked in his job as a chaplain since the reprisal and retaliation began in August 2010 * he cannot function in his job as a chaplain or any job in the military because his medical conditions are worsened by any interaction with the MOARNG and the amount of corruption he has witnessed * his desire was to not be retained in the military, to undergo a MEB, and to be separated from the military environment as soon as possible 35. He provided an Army Wounded Soldier and Family Hotline Intake Form, dated 18 November 2013, which shows the applicant called the hotline requesting an updated LOD for PTSD and placement on active duty orders for entry into the medical retention processing program. It states the applicant submitted a Warrior Transition Unit packet which his commander, LTC R____ S____ signed off on, but his higher chain of command did not yet sign off on. It also shows the applicant was requesting INCAP pay for unspecified dates and amounts. 36. A St. Louis VAMC letter, dated 26 November 2013, states the applicant was then currently receiving mental health services at the ST. Louis VA Operation Enduring Freedom/Operation Iraqi Freedom PTSD Clinic. He presented for initial evaluation on 2 August 2013 and had since been actively participating in treatment. He was seen for initial psychiatric evaluation on 11 September 2013 and carried a diagnosis of major depressive disorder, single episode. He was prescribed Zoloft and Ambien, was compliant with treatment recommendations, and his prognosis for recovery was excellent. 37. The applicant provided email correspondence from himself to members of his MOARNG chain of command on 4 December 2013, wherein he stated he attached his MEB packet, request to enter the Medical Retention Program, and request for INCAP pay along with supporting medical documentation. 38. A DA Form 3349, dated 9 December 2013, shows he was diagnosed with the medical conditions of sleep apnea, low back pain, and PTSD. He was given a PULHES physical profile of 212113, with a permanent physical profile rating of 3 for psychiatric and a note that he required an MEB. Under functional activities, the form shows he could not carry and fire his individual assigned weapon or live in an austere environment. He was able to participate in all other functional activities as well as do the Army Physical Fitness Test events of push-ups, walk, and bike. Functional limitations and capabilities shows no running and that his MEB packet was being forwarded to a military treatment facility for entrance into IDES. 39. Headquarters MOARNG Joint Force Headquarters, Order 357-173, dated 23 December 2013 reassigned the applicant from his duty position as chaplain to a duty position of medically non-available effective 18 December 2013. 40. The applicant provided a copy of the Basic Pay chart, effective 1 January 2014, whereon he annotated basic pay for a LTC/O-5 with over 30 years’ service was $ per month. He also annotated on the margin of the form that BAH pay was $ per month and Basic Allowance for Subsistence was $per month, all times 18 months. 41. An NGB memorandum for the Joint Forces Headquarters, MOARNG, dated 3 January 2014, states the applicant’s PTSD that occurred during Operation Iraqi Freedom as documented in a DA Form 2173, was approved as occurring in the LOD. 42. U.S. Army Human Resources Command (HRC) Orders A-01-401132, dated 28 January 2014 ordered him to active duty at Eisenhower Army Medical Center, Fort Gordon, GA, for 2 days effective 27 January 2014, to participate in the RC Managed Care-Evaluation/Disability Evaluation System and related medical appointments. 43. A MOARNG Joint Force Headquarters memorandum signed by the President of an INCAP Review Board, dated 8 February 2014, shows: a. His application for INCAP pay did not meet the criteria established in law and regulation for entitlement, therefore it was denied. b. The board found he did not provide sufficient medical documentation to support his claim he could not attend drill. His DA Form 7574 (Incapacitation Pay Monthly Claim Form) did not demonstrate the loss of nonmilitary earned income. His DA Form 7474-1 (Military Physician’s Statement of Soldier’s Incapacitation), section 8C, was marked “fit to perform military duties” and was signed by LTC P____ N____, State Behavioral Health Officer. c. He was advised he had the right to request a reconsideration of his case and should submit his request within 30 days of receipt of this memorandum. 44. The applicant’s INCAP pay packet submission, to include his DA Form 7574 and DA Form 7574-1 are not in his available records for review and were not provided by the applicant. 45. The applicant provided a 26 February 2014 memorandum from Headquarters, Dwight David Eisenhower Army medical Center stating a copy of his MEB Proceedings was enclosed for his review and signature. He also provided page 2 of his DA Form 3947, which he signed on 28 February 2014 stating he agreed with the MEB’s findings and recommendations. Page 1 of the form, showing the findings and recommendations of the MEB, is not in his available records for review and was not provided by the applicant. 46. On 5 March 2014, the applicant appealed his INCAP Pay denial to the NGB stating the following: a. He submitted a claim for INCAP pay on 23 December 2013 as a result of his inability to perform his military duties and also his inability to perform his civilian job due to his PTSD and related behavioral health disabilities. His request was denied largely on the basis that he did not provide sufficient medical documentation that he could not attend drill and that he did not demonstrate the loss of nonmilitary earned income. b. The denial was based almost entirely on the DA Form 7574-1 which is marked that he is fit to perform military duties, but he claims that determination is procedurally invalid and the evidence amply support award of type I INCAP Pay. Army Regulation 135-381 states a Tier 1 INCAP Pay claim must be accompanied by a determination of a military medical physician concerning fitness to perform military duties. In addition, DA Pamphlet 135-381 states a Soldier who has claimed incapacitation is not to perform any military duty until a determination is made by a military physician. His DA Form 7574-1 was signed by LTC P____ N____, who is not a physician, but it is his understanding she is a licensed clinical social worker who holds a Master’s degree in that field. To her credit, she acknowledged she is not a physician by crossing out the work “physician” on the form. While she may well be excellent at her profession, she is not qualified to make a fitness determination. This is not a mere technicality. She is also not authorized to assign a physical profile or be on his MEB. c. He also notes the INCAP pay denial did not refer to the statement from his commander, LTC R____ S____ on the DA Form 7652 (Commander’s Performance and Functional Statement) where she recommended against his retention writing he was under extreme stress and was restricted from executing some of the basic functions of a chaplain. Her opinion overwhelmingly supports award of Tier 1 INCAP pay. Alternately, his PTSD caused him to lose his civilian job and he should receive INCAP pay up to his salary for that position. The referenced DA Form 7652 written by his commander has not been provided for review. d. He promptly notified his chain of command about his unfitting PTSD, which was confirmed by a medical examination in August 2013 as aggravated to the point where he was no longer fit to perform his military duties and he submitted his claim packet in strict compliance with Army policy. 47. He provided a copy of a 10 March 2014 email he sent to officials involved with his MEB regarding the denial of his INCAP pay claim and his request to be put on active duty orders. 48. A memorandum from the U.S. Army PEB to the VA, dated 21 March 2014, shows the PEB found the applicant physically unfit to continue military service for the PEB referred unfitting conditions of PTSD with comorbid major depressive disorder and requested a disability rating percentage from the VA for the referred conditions. 49. A VA letter to the applicant, dated 24 March 2014, shows he received the following service-connected disability ratings for the following conditions: * PTSD, 70 percent effective 19 October 2012 * hypertensive renal disease with hypertension, 60 percent effective 5 March 2013 * bilateral pes planus with osteoarthritis, 50 percent effective 15 July 2013 * abnormal T wave with left ventricular hypertrophy, 30 percent effective 15 July 2013 * lumbar strain, claimed as back condition, 10 percent effective 23 May 2012 * right hip condition, 10 percent effective 19 October 2012 * tinnitus, effective 10 percent effective 19 October 2012 * left knee condition, 0 percent effective 5 March 2013 * right ear hearing loss, 0 percent effective 19 October 2012 50. A 25 March 2014 memorandum from an MEB doctor at Headquarters, Dwight David Eisenhower Army Medical Center states the applicant was required to attend all medical appointments, to include behavioral health appointments while going through the MEB. He should not be attending drill at any time from this point on until the conclusion of the IDES process. He was required to focus on his MEB/PEB requirements. 51. A memorandum from the applicant’s Battalion Commander, LTC J____ J____, dated 3 May 2014, states: a. The applicant would be scheduled for an appointment with a behavioral health provided at the General Leonard Wood Army Community Hospital in order for a neutral provider to interview him and review his medical documentation to determine if he was medically fit to attend military drills. He would be credited with one day of drill for his attendance at this appointment. b. He was then to report the findings from his behavioral health assessment and drill determination and conduct a face-to-face counseling with LTC J____ J_____, his new commander. As reporting to the Ike Skelton Training Site was a source of great stress for the applicant, LTC J____ offered to conduct the counseling off-site at the Blue Armory in Jefferson City, MO and the applicant would be credited with one day of drill for his face-to-face counseling. c. He was informed if he failed to report for the scheduled dates, his duty status would be changed to unexcused absence, at which point he could not be processed through IDES if not under military control. 52. He provided a Ministerial Pension Plan Rollover Agreement for Pension Distribution form, dated 13 June 2014, which shows his account balance as of 13 June 2014 to have been $ and that 35% of his account balance was estimated to be $. Included with the statement was a letter, likewise dated 13 June 2014, from the General Board of Pension and Health Benefits stating to receive a distribution he would need to complete the enclosed application. 53. His records contain a DA Form 199 (Informal PEB Proceedings), which shows a PEB convened on 7 November 2014 and found the applicant physically unfit due to PTSD with comorbid major depressive disorder. The PEB recommended a rating of 70 percent and that the applicant’s disposition be permanent disability retirement. On 14 November 2014, the applicant concurred with the findings, waived a formal hearing, and did not request reconsideration of his VA ratings. 54. An APDA memorandum, dated 16 December 2014, advised the applicant he was found to have a disability and would be permanently retired with a disability rating of 70 percent and his retirement orders were enclosed. 55. APDA Order D 350-50, dated 16 December 2014 shows the applicant was released from assignment and duty because of physical disability and placed on the retired list effective 20 January 2015 with a disability percentage of 70 percent. 56. An NGB Form 22, shows he was transferred from the ARNG to the Retired Reserve effective 19 January 2015 due to permanent physical disability, after 18 years, 5 months, and 17 days of net service this period and a total of 30 years’ service for retired pay. 57. An NGB Form 23A (ARNG Current Annual Statement), prepared on 2 February 2015, shows the applicant accrued the following: * 59 inactive duty training (drill points) points, 15 membership points, and 94 retirement points between 6 January 2013 and 5 January 2014 * 9 inactive duty training points, 15 membership points, and 25 retirement points between 6 January 2014 and 5 January 2015 * 0 inactive duty training points, 1 membership point, and 1 retirement point between 6 January 2015 and 19 January 2015 58. On 22 January 2020, the NGB provided an advisory opinion, wherein the NGB INCAP policy section, ARNG Surgeon Office and the MOARNG were consulted, which states: a. The applicant was approved for INCAP pay for injuries (PTSD/lumbar spine) sustained while in the MOARNG from 11 February 2014 through 30 April 2014, however INCAP pay was not approved for the same injuries for the period from 1 May 2014 through 31 July 2014. His appeal was denied on the basis that it did not meet the established criteria defined in Army Regulation 135-381, because he was found fit for duty per a DA form 7574-1 and he was not compliant in providing all necessary medical documentation, therefore violating his signed DA Form 7574-2 (Soldier’s Acknowledgement of Incapacitation Pay Counseling). b. In review of this case, it is evident that the applicant did provide the necessary medical documentation to grant him INCAP for the months he was disapproved, since nothing had changed for him medically from the previous months that had already been approved. The NGB could not find any evidence that supported the reasoning for the MOARNG Incapacitation Review Board and the ARNG Personnel Division to deny the applicant INCAP for the months of 1 May 2014 through 31 July 2014. c. Additionally, another reason for the denial was that the applicant was found fit for duty on 12 February 2014 by LTC P____ N____, a medical officer with a specialty as a Social Worker. The applicant surmised that LTC N____ lacked the authority to provide a fitness decision, however the NGB found that LTC N____ did have the authority per Department of Defense (DOD) Instruction 6490.4, dated 28 August 1997, paragraph 6.3.3, which states that, “DOD psychiatrists, doctoral-level clinical psychologist, or doctoral-level clinical social workers with clinical practice privileges have authority.” However, one month later on 28 February 2014, the applicant would be recommended for a PEB that would find him unfit for military service for medical reasons and be medically retired on 20 January 2015. d. The applicant also contends that the money recouped by DFAS for attending drill pay should be returned. Soldiers may not receive concurrent receipt of drill pay and VA disability or pension. In the event a Soldier were to perform inactive duty training, he would need to elect the benefit he prefers and waive the other. The MOARNG provided documentation from the applicant’s PEBLO, dated 4 April 2014, stating the Soldier had elected not to waive his VA disability compensation to receive inactive duty training or other military pay. However, a memorandum from the applicant’s commander, LTC J____ J____, dated 3 May 2014, supports the applicant’s contention he was instructed to attend individual training on specific days and that he would also be split-coded, meaning he would be excused from training, but also need to make up those days. Though the unit did not make a mistake in paying the applicant for drilling instead of allowing him to attend for retirement credit only, the applicant was well aware that he had waived the drill pay for VA benefits and that the money received was subject to recoupment. e. Based on the evidence reviewed, it is the recommendation of the NGB that the applicant be granted INCAP (Tier 1) for the remaining months not approved and that the amount recouped for drill pay while attending the IDES not be waived and should remain as is. 59. On 26 February 2020, the NGB provided a second advisory opinion as an update to the first opinion, wherein the NGB INCAP policy section, ARNG Surgeon Office and the MOARNG were consulted, which states: a. The applicant was disapproved for INCAP pay for injuries (PTSD/lumbar spine) sustained while in the MOARNG. His appeal was denied and disapproved for the period from 1 May 2014 through 31 July 2014; however, the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) dashboard shows that INCAP was approved for the period from 11 February 2014 through 30 April 2014, and disapproved for the period form 1 May 2014 through 31 July 2014. The applicant’s appeal was denied on the basis that it did not meet the established criteria defined in Army Regulation 135-381, as he was found fit for duty per DA Form 7574-1 and he was additionally noncompliant in providing all necessary documentation. b. In review of this case, it is evident the applicant did provide the necessary medical documentation to grant him INCAP for the months he was disapproved, since nothing had medically changed for him from the previous months wherein INCAP had already been approved. The NGB could not find any evidence supporting the reasoning of the MOARNG Incapacitation Review Board and the ARNG Personnel Division in denying the applicant’s INCAP claim for the period from 1 May 2014 through 31 July 2014. In an additional review of this case, information was obtained from the applicant’s unit which shows although the MEDCHART dashboard reflects an approval of INCAP for the period of 11 February 2014 through 30 April 2014, no actual payment for the approved period has ever been made. c. An additional reason for the INCAP denial was the applicant was found fit for duty on 12 February 2014, by LTC P____ N____, a medical officer with a specialty as a social worker. The applicant surmised that LTC N____ lacked the authority to provide a fitness decision; however the NGB found that LTC N____ did have the authority per DoDI 6490.4, dated 28 August 1997, which states “DoD psychiatrists, doctoral-level clinical psychologists, and doctoral-level clinical social workers with clinical practice privileges have the authority.” However, one month later, on 28 February 2014, the applicant would be recommended for a PEB that would find him unfit for military service for medical reasons and to be medically retired on 20 January 2015. d. The applicant also contends that the money recouped by DFAS for attending drill pay should be returned. Soldiers may not receive concurrent receipt of drill pay and VA disability or pension. In the event a Soldier were to perform inactive duty training, he would need to elect the benefit he prefers and waive the other. The MOARNG provided documentation from the applicant’s PEBLO dated 4 April 2014, stating the applicant had elected not to waive his VA disability compensation to receive inactive duty training or other military pay. However, a memorandum from his commander, LTC J____ J____, dated 3 May 2014, supports the applicant’s contention he was instructed to attend individual training on specific days and that he would also be split coded, meaning he would be excused from training but would still need to make up those days. Though the unit made a mistake in paying the applicant for drilling instead of allowing him to attend for retirement credit only, the applicant was well aware that he had waived the drill pay for the VA benefits. e. Based on the evidence reviewed, it is the NGB recommendation that the applicant should receive payment for the INCAP approved for the period of 11 February 2014 through 30 April 2014 and be granted additional INCAP (Tier I) for the remaining months not approved. Additionally, the amount of recouped for drill pay while attending the IDES should not be waived and should remain as it. The applicant also contends he should be payed INCAP until the time period of his medical retirement on 20 January 2015. The NGB found no evidence to support the applicant has ever submitted additional documents to support INCAP beyond the timeframe of 11 February 2014 through 31 July 2014 and therefore cannot make a recommendation on what the outcome of INCAP would be for any additional time periods. 60. In conjunction with the advisory opinion, the NGB provided a copy of the applicant’s MEDCHART dashboard, which shows that INCAP was approved for the period from 11 February 2014 through 30 April 2014, and disapproved for the period from 1 May 2014 through 31 July 2014. 61. In the adjudication of this case, the office of the DAIG was contacted for information and there is no DAIG substantiation of Whistleblower Reprisal. 62. The applicant was provided a copy of the NGB advisory opinions and given an opportunity to provide comments. He responded on 11 March 2020, stating: a. Below are his responses to the NGB advisory opinion regarding INCAP back pay. His claim to the ABCMR was for nearly 21 months or 4 May 2013 to 20 January 2015. He does NOT know where NGB received their dates. The MOARNG Joint Force Headquarters (JFHQ) was NOT forthcoming nor communicative or supportive ever since his protected communication to the then COL W____ H____ (now Major General) and the then Chaplain (COL) G____ G____(now retired) on 21 March 2010 and his return from active duty and retaliation/reprisal as a Dual Status Federal Military Technician (GS 12 Step 4) and IDT Drilling Soldier/Chaplain (LTC) with the same MOARNG JFHQ on 1 July 2010. b. His request/notification for INCAP Pay occurred on 1August 2013, but the aggravation of his PTSD with co-morbid major depression injury occurred on 4 May 2013 or during (IDT). He was medically retired by the U.S. Army on 20 January 2015 and so ordered by the USAPDA – Order Number 350-50 dated 16 December 2014) with many medical conditions (Please See Administrative Record). Dr. (COL) W____ H____ (MOARNG JFHQ), after his chapter 3 Physical, immediately referred him to the IDES on 1 August 2013. He immediately walked across the hall from the Clinic to the JFHQ Surgeon’s Office and notified them of Dr. H____’s immediate referral to the IDES. He requested disability pay and benefits or be put back on active duty for medical treatment. The JFHQ Surgeon’s Office told him he had NO benefits and could NOT be put back on active duty for medical treatment. Whether by intention or by ineptitude, or maybe some of both, the MOARNG violated Army Regulations in NOT paying him INCAP PAY and all other benefits associated with INCAP PAY. c. He submitted a total of eight claims to the ABCMR and is quite shocked and concerned that NGB consulted with the very Unit that he worked for who he believe discriminated and retaliated against him, along with Chaplain (COL) G____ G____, Retired. The then COL W____ H____(his former supervisor and Chief of Staff) is now a Major General on active duty in Saudi Arabia for the same NGB who discriminated/reprised/retaliated against him. d. His administrative record is replete with evidence that supports ALL of his eight claims. He claims any and all pecuniary and non-pecuniary benefits related to the corrections of my military records as a 1) Military Federal Technician (GS11 Step 10) with the OPM and as a 2) Inactive Duty Training (IDT) Chaplain and LTC, both with the MOARNG JFHQ in Jefferson City, Missouri. Please note that he was one of the first, if not the first, full-time Chaplains in the ARNG across the nation to include having seniority based rights and benefits as an OPM Military Federal Technician (over Chaplain COL) G____ G___, who was in his technician position while he served on active duty at the NGB Chaplain’s Office. The Cat’s Paw Theory applies to his ABCMR application/claim and the USCFC Lawsuit in regard to both Chaplain (COL) G____ G____, Retired and MG W____ H____. This CANNOT BE the presumption of regularity when the MOARNG acted arbitrarily, capriciously, and contrary to the law, Army Regulations, Directions, Instructions, common sense, and he U.S. Army, and specifically the USPDA. In short, all of the violations of laws, regulations, orders, directives, and instructions are breaches of fiduciary duty as an employer and health care provider for the Government toward him as an employee and disabled Iraq War veteran. Below are the violations and the claims that he has made to the ABCMR and USCFC Lawsuit (19-629C). e. INCAP back pay from 4 May 2013 (aggravation of PTSD injury) to 20 January 2015 (date of U.S. Army medical retirement) or nearly 21 months of back pay with interest approximating $. The NGB opinion is grossly inaccurate and the consultation with the MOARNG shows a depth of unbelievable ineptitude that bolsters his case for FULL RELIEF. The MOARNG, in regard to INCAP Pay, DID NOT FOLLOW, as an example Army Regulation 135-381, which states that INCAP PAY “Initial pay for a soldier who has suffered an injury, illness, or disease that prevents the soldier from performing military or civilian duties will be paid within 30 calendar days of notification of the injury, illness, or disease provided the soldier has an interim LDI. When an interim LDI is issued, the Commander will immediately initiate a LDI in accordance with AR 600-8-4.” He informed CPT J____ W____ (JFHQ Physician’s Assistant) of his PTSD Injury in July 2012. He asked him to put the diagnosis by a civilian psychiatrist in his military medical file. He also told CPT W____ that he would put in a disability claim with the VA Medical Center (VAMC) which he did in October 2012. He also asked for a chapter 3 Physical. He was constructively terminated (forced to resign) on 20 April 2013. On 4 May 2013, drill weekend, he followed up and asked about when he would get his Chapter 3 military physical. They scheduled him for his chapter 3 military physical on 1 August 2013 on an IDT drill weekend. He informed Chaplain (COL) G____ G____ of this appointment with Dr. (Colonel) W____ H____. He informed Dr. H____ of everything that happened since his return from active duty on 1 July 2010. At the end of his chapter 3 military physical, Dr. H____ informed him that he was referring him to IDES because of his numerous medical disabilities but specifically his PTSD and its aggravation making him unfit for military service. He asked the MOARNG Surgeon’s Office about disability pay and benefits or to return to active duty for medical treatment. They said he could NOT return to active duty for medical treatment and that he had NO benefits based on his disabilities. Again, whether by intentionality or by ineptitude, he should NOT have drilled after 1 August 2013 and should have received INCAP pay from at least this date. Ignorance of the law and regulations is no excuse. f. OPM FERS disability retirement pursuant to Title 5 U.S.C. 8451 of Back Pay and Front Pay (2025) with interest of approximately $. g. Discrimination under USERRA pursuant to Title 38 U.S.C. with interest of approximately $, plus double damages for intentional violations of the law or another $ for a grand total of $ h. Military Whistleblower Retaliation Act Of 1988 pursuant to Title 10. U.S.C. Section 1034. The pecuniary and non-pecuniary damages are uncertain to him and he claims “any” and “all” benefits due to him if the retaliation had not occurred. i. Federal Whistleblower Retaliation pursuant to Title 5 U.S.C. 2302. The pecuniary and non-pecuniary damages are uncertain to him and he claims “any” and “all” benefits that would have been due to him if the retaliation/reprisals had not occurred. j. Federal Computer Fraud and Abuse (CFAA) pursuant to Title 18 U.S.C. Section 1030. The pecuniary and non-pecuniary damages are uncertain to him and he claim “any” and “all” benefits that would have been due to him if the unauthorized hacking had not occurred. k. Health care fraud pursuant to Title 18 U.S.C. Section 1347 and Health Care Conspiracy pursuant to Title 18 U.S.C. Section 371. The pecuniary and non-pecuniary damages are uncertain to him and he claims “any” and “all” benefits that would have been due to him if the health care fraud and conspiracy had not occurred. l. Articles of the UCMJ: * Article 81 – Conspiracy * Article 92 – Failure to Obey an Order (McGhee Military Medical Retirement Order) * Article 93 – Cruelty, Oppression and/or Maltreatment * Article 121 – Larceny and/or Wrongful Appropriation * the pecuniary and non-pecuniary damages are uncertain to him and he claims “any” and “all” benefits if the violations of the Articles of the UCMJ had not occurred l. Please note his more specific responses to the NGB advisory opinion in below paragraphs. m. The NGB states that his INCAP pay packet was submitted on 23 December 2013. This is correct. The MOARNG JFHQ was notified of his aggravation by Dr. (COL) W____ H____ on 1 August 2013 and his aggravation occurred on 4 May 2013. n. The NGB states his INCAP PAY was approved but not paid from 11 February 2014 to 30 April 2014 or approximately $. The NGB also states that he was not approved for INCAP PAY from 1 May 2014 to 31 July 2014 or approximately an additional $. The NGB advisory opinion clearly states that they could not find ANY evidence that supported the reasoning the MOARNG Incapacitation Review Board (IRB) and ARNG Personnel Division to DENY his INCAP claim for the months 1 May 2014 to 31 July 2014. Again, the MOARNG defied laws, regulations, etc. and intentionally and willfully withheld his INCAP pay and other benefits for a grand total of approximately $, which he is claiming. o. The NGB incorrectly states that LTC N____ had the authority to make a fitness determination. The Department of Defense (DoD) Instruction 6490.4, dated 28 August 1997, para 6.3.3 states that DoD psychiatrists, doctoral-level clinical psychologists or doctoral-level clinical works with clinical practice privileges have authority. LTC N____ is NOT a doctoral-level social worker with practice privileges. In other words, LTC N____ does not have a doctorate degree. Further, there was NO NEED to have a Fitness for Duty Determination when their own MOARNG JFHQ military medical doctor, Dr. (COL) W____H____, M.D. declared him unfit and had the authority to do so. Even further, every DoD and VA psychiatrist and psychologist and medical doctor declared him unfit for military duty and my “unfitness” was confirmed by the MEB and PEB. p. Again, the MOARNG was in contact with Ms. R____ C____, his U.S. Army PEBLO at Fort Gordon, GA, and had access to all of his IDES DoD/VA medical files along with him providing additional copies. The MOARNG has no excuses. The MOARNG intentionally/willfully aggravated his medical conditions and retaliated against him and he claims, minimally, $. q. If he knew he was approved for INCAP (minimally for approximately $) or had any money due to him because he did not have a job or earned income and was disabled, he would have done ANYTHING to receive his INCAP pay and benefits. Why didn’t the MOARNG ensure that he received his INCAP pay if they knew he was approved and was disabled? He thinks that his evidence makes it clear that the MOARNG aggravated his PTSD injury, reprised/retaliated and discriminated against him. r. The NGB incorrectly states that he asked for the ABCMR to pay him back for DFAS recouping drill pay while receiving VA disability pay. His point was and is that he should not have drilled since the 1 August 2013 IDT drill. Again, their own Dr. (COL) W____ H____ immediately referred him to the VA/DoD IDES based on his PTSD medical condition and the MOARNG aggravation of it which occurred on 4 May 2013. INCAP PAY should be paid 30 days after injury or aggravation of injury notification. s. Based on the NGB advisory opinion and the overwhelming evidence in his administrative record, he should receive back pay from 4 May 2013 to 20 January 2015 or 21 months or, with interest, approximately $. Again the grand total for all of his claims is minimally $ (including the double damages for willful/intentional violations). t. Please remember that the Court ordered the ABCMR to provide to him a detailed response to every claim that he made. 63. On 1 May 2020, the applicant provided an amended complaint in the form of a self- authored statement dated 1 May 2020, and two Department of Labor documents, both dated 17 September 2012, and four INCAP pay documents. In his amended complaint, the applicant states: a. He is filing an amended complaint to the ABCMR after receiving the ABCMR decision on 13 April 2020. He finds it necessary to clarify his claims in both his ABCMR case as well as the U.S. Court of Federal Claims case. The 13 April 2020 decision was with the approval from and “by the order of the Secretary of the Army.” He has four claims totaling approximately $. His claims are for military pay, U.S. Army back pay, front pay, and disability annuity as a military technician dual status. The ABCMR’s action or refusal to hear his claim triggers the 6-year statute of limitations with the U.S. Court of Federal Claims, to include jurisdictional authority. He believes the ABCMR is the correct agency to hear all of his claims and grant him full relief. b. He has further summarized his claims from eight down to four claims. His claims are as follows: * INCAP pay * USERRA discrimination based on his seniority, status and pay benefits * OPM FERS disability annuity retirement versus OPM deferred annuity retirement * Federal and military Whistleblower Reprisal c. He is claiming entitlement to INCAP pay and allowances from 4 May 2013 (his first drill weekend eligible date for INCAP with the MOARNG in Jefferson City, MO) until 20 April 2015. He has already been approved for physical disability retirement with the U.S. Army, approved for and paid back pay, and received disability pay from the VA, as well as approved for and paid back pay for SSDI with the Social Security Administration. The INCAP pay that he is claiming is not related to any of the above claims other than they are evidence of his permanent disability with these Government agencies. He claims approximately $ which includes interest at 10 percent from 4 May 2013 to 20 January 2013). d. As a military technician dual status with the MOARNG, he is claiming his pecuniary benefits when the MOARNG placed Chaplain, COL (now retired) G____ G____ in his supervisory chaplain position while he was on active duty with the NGB from 1 July 2008 to 30 June 2010. Anticipating problems on his return from active duty, he sent an email to COL (now MG) W____ H____ and Chaplain G____ G____, specifically speaking to his “seniority, status, and pay” rights in Title 38 USC. The MOARNG violated the law related to his seniority, status, and pay rights and benefits when Chaplain G____ was placed as his military technician dual status supervisor upon his return from active duty on 1 July 2020, although his seniority status and pay date was around 1 July 2008 while his was February 2002. This claim of seniority, status and pay benefits has not been brought to the U.S. DOL, but was mentioned to the DAIG and the DODIG. e. MODOL official W____ B____ investigated, found no evidence and closed his 2012 case. The DOL investigated his claim of the violation of reemployment rights, but not his seniority, status and pay right claim. This claim provided overwhelming evidence of USERRA violations in the administrative record, to include Federal and military Whistleblower retaliation, which he will speak to more specifically as a separate claim later in this amended complaint. The evidence is as follows: * unbeknownst to him, the MOARNG changed his military technician Chaplain position responsibilities in 2009 in blatant violation of the “escalator principle” * they placed Chaplain G____ as his supervisor, also in violation of his seniority, status and pay benefits * they aggravated his PTSD and other disabling conditions, which led to his request for INCAP pay * they placed him in a hostile work environment and requested his resignation or be fired (constructive termination f. Because this violation was willful or intention, he claims double pay damages equal to approximately $, which includes 10 percent interest of his projected future salary (front pay) or about $ until age 62 on 22 September 2025, if the violations had not occurred. g. The heart of his claim highlights that but for his uniformed service, active duty at the NGB office of the Chaplain, he would have attained any position from his seniority, status and pay and qualified because of his doctorate degree in 2005 and Chaplain G____ would not have been placed in a position over him. Also, prior to becoming a Chaplain, he was trained with the U.S. Army as an officer in the Adjutant General’s Corps (human resources personnel). Chaplain G____ did not have these qualifications. h. DOL Veterans’ Employment and Training Service Federal Register 20 CFR Part 1002, USERRA Act of 1994 states: USERRA’s intent is to ensure that returning service members are accorded the status, pay, and benefits to which they were entitled had they not served in the uniformed services, generally without exception. In its administrative enforcement of the Act, the Department has long interpreted the statute and its predecessor to require that a returning service member should be awarded a job or other prerequisite of employment if it is reasonably certain that the service member would have received it but for the interruption due to military service. See the Veterans’ Reemployment Rights Handbook at 13-4. This approach comports with the statute and is legislative history governing the nature of the reemployment position. i. Again, but for his military service, it is reasonably certain he would have attained “any” position because of his qualifications and Chaplain G____ would not have been put in his supervisory Chaplain position as a military technician dual status employee. j. His third claim is his U.S. OPM disability annuity retirement. He is now retired with OPM as a FERS deferred annuitant retiree effective 22 September 2019. He was forced to resign (constructive termination) from his military technician dual status position with the MOARNG after being an employee from February 2002 until the effective date of his constructive termination on 20 April 2013. He was told to resign or be fired. The MOARNG human resources manager, Mr. (Chief Warrant Officer Four) R____ W____ explained to him that he had no benefits after his resignation, to include unemployment benefits, which was not true. k. On 24 September 2016, he had a conversation with LTC S____ B____, who was the MOARNG EO officer when he was in the military. She congratulated him on his military medical retirement and his INCAP payment that he received while processing out of the military through the IDES. He told her that he did medically retire, but that he did not get INCAP pay. She insisted he received both of these benefits because she was on a conference call with Mr. (former COL) L____ L____, Chief, Compensation and Entitlements, G-1 when he told COL S____ to submit his correct INCAP pay packet so he could get paid. His commander, COL S____ did not submit his initial INCAP packet or his appeal packet to the NGB or the Army for beyond the 6 months of INCAP pay. The MOARNG may have committed fraud based on his conversations with Mr. L____ and his office regarding what he had received versus what he told him he had provided and what the MOARNG had access to while he was going through the IDES process. His point is that this was intentional, as can be easily verified with Mr. L____, whom he believes to still be the Chief of Entitlements and Benefits and the approval authority for INCAP pay. l. The other members on the conference call were COL R____ S____ (now deceased), his detachment commander, and MAJ B____ M____, the full-time Deputy State Surgeon with the MOARNG in Jefferson City, MO. It was at that time that he realized the MOARNG under MG S____ D____ had willfully and intentionally reprised against him and violated laws, Army regulations, directives, and instruction. He researched and found information about the ABCMR and their authority as the highest level of administrative review within the department of the Army, with the mission to correct errors in or remove injustices from Army military records. He filed his complaint with the ABCMR in January 2017 and asked himself what other of his pay and benefits had the MOARNG willfully and intentionally violated, denied, or failed to ensure he was informed about? He claims his OPM disability pay annuity and all the pecuniary benefits associated with it. His estimated pay claim is approximately $ of back pay after the adjustment of Social Security pay benefits already received are deducted. m. His fourth claim is for any and all pecuniary benefits due to him pursuant to the Military Whistleblower Protection Act. His first protected communication occurred on 21 March 2010. He returned from a 2-year active duty tour with the NGB, from 1 July 2008 to 30 June 2010 and that is when many acts of Federal and military whistleblower retaliation occurred. The pattern and practice of retaliation cannot be disputed when seeing the evidence of his administrative record. n. The investigation done by his second line supervisor, COL L____ B____ (now retired) into Chaplain G____’s proposed adverse action against him was not placed in his OPM permanent personnel file. COL B____ personally provided him with a copy because she told him she thought the MOJFHQ under MG S____ D____ would delete it or not put the investigation into his personnel file. He lives 5 minutes from the U.S. National Personnel record Center (NPRC) in St. Louis MO, where his Official Military Personnel File (OMPF) and civilian OPM Personnel File are stored. He requested all of his federal and military personnel files and her investigation was not in his files. His administrative record is replete with evidence of willful intent. He claims, minimally, $ for these many pay violations. If full relief is not granted by the ABCMR for whistleblower reprisal/retaliation, as confirmed by the facts and the DODIG, he requests a review by the Secretary of Defense. o. To be even more precise about his whistleblower claim, he is providing a list of 37 examples of reprisal below, and wants the Board to know his records were spotless with approximately 25 years of service: (1) Protected email communication was provide to COL (now MG) W____ H____ and Chaplain G____ G____ on 21 March 2010 (2) Chaplain G____ was knowingly placed over him as his supervisor in violation of his seniority, status, and pay rights and benefits on 1 July 2010. (3) His Chaplain responsibilities as a Federal employee and military Chaplain with the rank of LTC and a Doctorate Degree (attained in 2005) were restricted starting on the first day of his return from active duty, 1 July 2010. (4) MOARNG failed to hire him for a Chaplain position in St. Louis, MO at his same rate of pay although he was the most qualified for the position in the MOARNG and one of the most qualified nationally, in July 2010. (5) He filed many complains with the MOARNG Office of the IG, the DAIG, and the DODIG officer from 2010 – 2013. (6) He filed communications and complaints to the MODOL between July and September 2012, as evidenced by the MODOL case copy he provided. (7) He asked CPT J____ W____ to place a civilian psychiatrist’s PTSD diagnosis into his medical file on 17 July 2012 and put in a PTSD claim to the VA in October 2012 (with VA/Army back pay from this date) with a 100 percent VA rating and 70 percent rating from the Army for medical retirement on 13 December 2014. (8) COL L____ B____, provided him with her ROI in response to Chaplain G____’s proposed adverse action 15-day suspension dated 21 October 2012 and signed by him on 26 October 2012. (9) He sent letters of complaint go the Governor and other elected officials from 20 November 2012 to 14 February 2013. (10) He provided an email to P____ K____ dated 14 February 2013. She eventually won a discrimination lawsuit in MO Court on 21 June 2016 in the amount of $ before calculating interest. (11) In March 2013, he was asked by the MOARNG Chief of Staff, Col D____ B____ to resign with an effective date of 20 April 2013. (12) In March 2013, his military officer computer was wiped by the MOARNG. His computer had on it personal and military files and what he estimates to be a million dollar database based on his doctoral dissertation /thesis of about 12,000 Soldier’s spiritual Health Records. (13) On 1 August 2013, he had his military medical separation physical at the MO JFHQ with Dr. W____ H____ at which he told Dr. H____ about the retaliation against him since 1 July 2010 and his forced termination effective 20 April 2013. (14) He received his DA Form 2173, dated 23 August 2013, from the MO JFHQ. (15) He notified the MO JFHQ Medical Detachment that DR. H____ had declared him unfit for further military service and asked about any disability pay benefit or to be placed back on active duty for medical treatment and was told he had no disability pay benefits and could not be put back on active duty. (16) On 3 September 2013, he sent an email to the MO FJHQ detachment commander, COL R____ S____, notifying her that he was placed in the IDES for medical separation and asked to be removed from his chain of command under MG S____ D____. (17) He received his LOD for anxiety disorder from the NGB signed by the authority of the Secretary of the Army on 10 September 2013. (18) Between 12 - 13 September 2013, he received a call from an analyst at the AT&T Global Fraud Department regarding their 7 month investigation into him being hacked by the MOARNG. He was asked to provide contact information to the FBI to call the AT&T Fraud Department so they would provide all the evidence of this crime. He called a St. Louis, MO FBI agent who asked him to fil out an Internet Crime Complaint Center Form, which he did. He sent an email to the DAIG office, the DODIG hotline, and to DAIG official LTC B____ T____ about the hacking of his AT&T account by the MOARNG. (19) On 16 September 2013, he sent an email to the DAIG and DOIG about a letter from Senator R____ B____, which was a response to a Congressional Inquiry dated 17 May 2012, showing knowledge of his many complaints of a pattern and practice of whistleblower retaliation and adverse actions after complaints. (20) He received his DA Form 3349 with his physical profile rating as determined by the profile officer Dr. W____ H____ on 2 October 2013. This form clearly shows he did not meet retention standards and needed an MEB. Note that this is after his physical by the same doctor on 1 August 2013. This irrefutable evidence shows exactly when the MOARNG knew or was officially notified of his unfitting conditions and still continued to retaliate against him by denying him INCAP pay. The NGB advisory opinion of 26 February 2020 stated they could not find any evidence that supported the reasoning for the MOARNG INCAP Review Board and the ARNG Personnel Division to deny his INCAP for the months of 1 May 2014 through 31 July 2014. Again, he asks for INCAP from 4 May 2013 forward or to be placed back on active duty for medical treatment. Per Army regulation, INCAP must be paid within 30 days of notification when the qualifications are met. (21) On 2 August 2013 he was diagnosed with anxiety disorder and major depression disorder by his treating psychiatrists at the VA Medical Center at Jefferson Barracks, PTSD Clinic and he emailed [presumably his chain of command] their letter of diagnose on 16 October 2013. (22) He emailed a VAMC emergency room statement with discharge notes on 24 October 2013. (23) On 25 October 2013, he emailed LTC R____ S____ a self-authored memorandum for input into the Commander’s Statement on the DA Form 7652. In his memorandum he stated he has faced command, unit, and especially chain of command intentional reprisal and retaliation since his return from active duty on 1 July 2010. This caused him to distrust people and any relationships inside and outside the military system. He has not worked consistently at his job as a Chaplain since the reprisal/retaliation began in August 2010. This has been documented by him and can be confirmed by his last three referred OERS, only one of which was entered into his OMPF in iPERMS. The memorandum further stated he could not function to do his job as a Chaplain or any job within the military because of his medical conditions being worsened by any interaction with military personnel, especially the MOARNG due to his mistrust of them. The amount of corruption he has seen from the command, unit, and especially his current chain of command is sickening. He is dependent on the medication he listed above, his CPAP machine, and weekly therapies just to cope with daily living. (24) He sent a second letter from the VA Medical Center at Jefferson Barracks PTSD Clinic, dated 26 November 2013, to the MOARNG stating his medications and that he was compliant with treatment recommendations. (25) On 9 December 2012, he received another DA Form 3349 confirming his unfitting conditions for continued military services and need for an MEB, which was forwarded to the IDES for processing. (26) 8 months after he told Dr. H____ that the MOARNG retaliation/reprisal had reached its height, he provided repeat medical information for his INCAP claim packed that was supposed on have been completed and uploaded to the system by his unit on 23 December 2013. (27) On 8 February 2014, he received a denial letter from the MOARNG INCAP Review Board. (28) He received MEB Proceedings from U.S. Army Eisenhower Army Medical Center at Fort Gordon, GA, dated 26 February 2014, recommending his medical retirement, with which he agreed. (29) On 5 March 2014, he submitted his INCAP appeal packet. The MOARNG JFHQ had access to all of his military medical and service records since February 2002, when he started as a military technician dual status. (30) On 6 March 2014, he sent an email to his PEBLO, Ms. R____ C____ and others stating he was overwhelmed by the stress that the MOARNG had placed on him and asked that his MEB/PEB be expedited to allow for medical retirement. (31) He received a letter from the Army dated 21 March 2014, stating he was unfit for military service and there request from the VA for a Disability Rating. (32) He received the VA Disability Entitlement and Ratings award letter dated 24 March 2014. (33) Please note the NGB advisory opinion stated he was approved for INCAP pay, but was never paid. As stated in his response to the NGB advisory opinion, he had no control over the submission of his INCAP pay packets to the IDES. The MOARNG knew of these benefits, knew he was not working, knew he was disabled, and yet still did not ensure that he received this benefit, which is clear retaliation. The ABCMR’s first decision stated he did not put in other INCDAP pay claims because he was probably discouraged, which bolsters his claim of retaliation. (34) He received a copy of a military doctor’s letter, dated 25 March 2014, which was sent to the MOARNG JFHQ, stating he should not be drilling. (35) He emailed his Army Counsel, PEBLO and other on his MEB/PEB team explaining he just got off the phone with Mr. L____ L____ who was the Chief, Entitlement Benefits for the U.S. Army and who expressed he was concerned and disturbed and would call LTC S____ about why she did not correctly submit his INCAP pay packet from 3 April 2014. He later found out from LTC S____ B____, the EO Officer with the MOARNG JFHQ that on 24 September 2016, Mr. L____ did call and told LTC S_____ that he was entitled to INCAP. (36) He received an emailed letter from the new MOARNG JFHQ detachment commander, dated 3 May 2014, ordering him to go to a Mental Health Evaluation at Fort Leonard Wood, MO. He did not return to his unit after receiving this letter. He called the director of Behavioral Health at Fort Leonard Wood, MO, who he was to meet and asked him why would a Soldier need a Mental Health Evaluation if he/she had already completed the MEB/PEB process? He responded that another Mental Health Evaluation would not need to be done. When he was informed that it was the Chaplain himself who was the Soldier in question, the director said he would call and cancel his Mental Health Evaluation. This re-evaluation is evidence of further reprisal and retaliation. (37) His retirement orders were dated 16 December 2014, with an effective date of 20 January 2015, but the MOARNG JFHQ would not process his NGB 22 so he could bet his military medical retirement until February 2015. This evidence alone proves whistleblower retaliation and reprisal. No person should have to face this treatment. He provided the ABCMR with communication with every U.S. agency he notified about these retaliatory actions. Just because a person outranks the complainant, that does not make their actions legal, just, or righteous. He claims all of his pecuniary benefits and that those who are responsible for these willful and intentional actions which are against the law, Army regulations, directives, instructions, and ethics are held responsible to the fullest extent of the law. p. He believes, beyond the shadow of a doubt, that he has proved by a preponderance of the evidence in his administrative record all of his four claims. There are glaring errors and injustices to his military records and he respectfully requests the ABCMR makes the requested corrections to his records as per Title 10, USC, the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. q. The applicant’s wife, Reverend M____ signed the applicant’s statement as a witness. She states on 18 May 2020, they will have been married 29 years. They are both ordained elders/pastors in the United Methodist Church in the MO Annual Conference. They discuss everything in their family. The reading of this amended complaint to the ABCMR has re-traumatized her and caused her to remember these very stressful days, affecting her Lupus. Her husband’s career before the retaliation was impeccable. She has read this entire document and concurs with its accuracy of the facts and claims presented. 64. With the applicant’s amended claim and self-authored statement, he also provided a copy of U.S. DOL decision letter addressed to him, dated 17 September 2012, pertaining to his claim of USERRA violation, which has been included in full for the Board to review. The DOL determined there did not appear to be sufficient evidence to support his allegations of improper reinstatement and retaliation/reprisal for forcing his reinstatement. Based on the information obtained during the investigation, they did not find the evidence supports a violation of USERRA and were closing his case. He was advised of his right to request a referral of his claim to the U.S. Attorney General. 65. The applicant provided a second DOL letter, likewise dated 17 September 2012, but addressed to LTC K____ of the MOARENG JFHQ, informing him the applicant’s case was closed and that the applicant retained the right to have his claim referred to the Attorney General for consideration of representation. 66. The applicant also provided four documents pertaining to INCAP pay, which show the following: a. A DA Form 7574, dated 22 November 2013 shows the applicant submitted an INCAP pay monthly claim for the dates of incapacitation from 9 November 2013 through 30 November 2013, due to an approved LOD for injury on 10 September 2013. His detachment commander, LTC R____ S____ signed the form on 19 December 2013, recommending disapproval. b. A DA Form 7474-1 shows a military Behavioral Health Officer, MAJ N____, examined the applicant on 6 December 2013 and found him fit to perform military duties. c. A DA Form 7574-2 shows the applicant acknowledged receiving incapacitation pay counseling on 23 December 2013. The form is witnessed by LTC S____. d. A MEDCHART printout shows the applicant was approved for 79 days of INCAP beginning on 11 February 2014 and ending on 30 April 2014. BOARD DISCUSSION: 1. Upon review of the complete evidentiary record, the Board found sufficient evidence to grant partial relief to the applicant. 2. The applicant’s case was previously reviewed by an ABCMR board on 26 March 2020. The case was remanded to consider whether the applicant should have received additional relief in light of the fact that the applicant had requested Incapacitation Pay for a period beginning 4 May 2013. 3. The applicant claims he should be entitled to Incapacitation Pay for a period beginning 4 May 2013. The applicant claims this as the starting date for Incapacitation Pay because this is the date he asserts he was constructively terminated from his GS11 step 10 position as a chaplain. He therefore claims his Incapacitation Pay should begin on that date. 4. A review of the applicant’s records, however, reveals that the earliest the applicant had applied for Incapacitation Pay was for a period starting on 9 November 2013. A DA Form 7574 (Incapacitation Pay Monthly Claim Form) dated 22 November 2013, and apparently signed by the applicant, requests Incapacitation Pay for a period beginning 9 November 2013 and ending 30 November 2013. No other contemporaneous records indicate an earlier request for Incapacitation Pay. 5. The applicant bears the burden of demonstrating by a preponderance of evidence that an error or injustice occurred such that correction to the applicant’s military records is warranted. Army Regulation 15-185, para. 2-9 (31 March 2006). Before granting relief, sufficient evidence justifying the relief must be on the record or provided by the applicant. Relief shall be denied if there is insufficient material evidence in the record or provided by the applicant to warrant relief. DODD 1332.41, para. 3.2.3. (8 March 2004). This board finds there is insufficient evidence to indicate that the applicant should be awarded Incapacitation Pay earlier than 9 November 2013. Although the applicant now claims he is entitled to Incapacitation Pay as early as 4 May 2013, the records created contemporaneously with the relevant time periods indicate that he believed he was entitled to Incapacitation Pay only as early as 9 November 2013. The board finds more persuasive, and places greater evidentiary weight, on the contemporaneously created records rather than post hoc assertions made more recently. 6. The ABCMR board that rendered the 26 March 2020 decision in this case indicated that the applicant was entitled to Incapacitation Pay for the period beginning 11 February 2014 and ending on the date he was placed on the Permanent Disability List, which was 20 January 2015. The board found it more likely than not that the applicant remained sufficiently incapacitation during that period of time to warrant receipt of Incapacitation Pay. This board concurs with that assessment and finds sufficient evidence to conclude that Incapacitation Pay should be awarded to the applicant beginning 9 November 2013 and ending 20 January 2015. 7. As for the balance of the applicant’s requests, this board concurs with the 26 March 2020 board’s determinations and with that board’s reasons for those determinations. Consequently, this board denies the applicant’s application insofar as it requests any relief other than Incapacitation Pay for the period beginning 9 November 2013 and ending 20 January 2020. 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 paying him incapacitation pay (Tier 1) for the period 9 November 2013 through 20 January 2015. 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 any relief in excess of that described above. 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: Army Regulation 135-381 (Army National Guard of the United States and Army Reserve – Incapacitation of Reserve Component Soldiers) provides policies regarding incapacitation pay for Soldiers of the Army National Guard/Army National Guard of the United States and U.S. Army Reserve. a. The objective of the Reserve Component Incapacitation System is to compensate, to the extent permitted by law, members of the Reserve Component who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty, and to provide the required medical and dental care associated with the incapacitation. b. Incapacitation pay will be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation. c. When incapacitation lasts for over a year, the case should be processed through the Disability Evaluation System for disability separation or retirement. d. Incapacitation pay will end upon retirement, separation for physical disability, or determination by military medical personnel that the member has recovered sufficiently to perform military duties or when actually returned to military duty, whichever occurs first. e. 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. f. A member authorized incapacitation pay will not be allowed to attend Inactive Duty Training or to acquire retirement points for performing IDT. A Soldier attending IDT and performing military duties may be evidence that they are not suffering from a disability that entitled them to INCAP pay (Tier 1 cases). This will not be used as a basis for terminating entitlement to medical treatment. g. Military technicians participating in active duty or IDT in a military status are eligible for the same entitlement to medical care as other Soldiers governed by this regulation. Injury, illness, or disease suffered while performing duties as a civilian employee of the Department of the Army does not qualify technicians for medical care at Government expense under this regulation. Special attention will be devoted to military technicians to determine the status of such individuals, that is civilian, military or neither at the time of incapacitation, to ensure fairness and equity to the Government and the individual. h. Tier 1 refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service. A determination of fitness for duty must be made by a martially medical physician. Eligible Soldiers are paid full military pay and allowances, less any civilian earned income received during the month of the claim, and are not eligible to draw retirement points. i. Tier 2 refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician, but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income. Eligible Soldiers will be reimbursed for lost civilian earned income up to full military pay and allowances and are eligible to draw retirement points. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005933 2 1