BOARD DATE: 20 March 2018 DOCKET NUMBER: AR20170009365 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 March 2018 DOCKET NUMBER: AR20170009365 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his military service records by voiding his 30 September 2010 release from active duty (REFRAD) separation action, reinstating him on active duty (AD) effective 1 October 2010 and through 10 September 2014, the date he was retired for permanent physical disability. He also requests personal appearance before the Board. 2. The applicant states he was ordered to AD on 8 October 2009 (through 30 September 2010) to prepare his unit (105th Military Police (MP) Company, Buffalo, NY) for deployment to Iraq in support of Operation Iraqi Freedom. a. While he was at a unit drill on 6 March 2010 he began to feel faint and weak. On his way home he went to a medical facility. He was then taken to a hospital because he had internal bleeding. He was later diagnosed with primary biliary cirrhosis. b. In June or July 2010, a medical team came to his unit to conduct medical readiness screening. A physician assistant (PA) determined that he should be referred to a medical board for a duty status determination. His case manager (a nurse) advised him that, if he got a statement from his medical provider indicating that he was able to deploy, she would medically clear him for deployment. He adds that he underwent another medical readiness screening at Camp Smith, NY, before he was REFRAD on 30 September 2010. c. He returned to his Army National Guard (ARNG) unit and continued to drill. He was then issued orders to deploy to Iraq with his unit. Around January 2011, a PA from U.S. Army Medical Command (MEDCOM) notified him that a mistake had been made (i.e., that the case manager was not aware of the seriousness of his condition) and he should not have been medically cleared because his case was not reviewed by a medical board. He adds the PA knew the seriousness of his condition because he stated a medical board was necessary. d. The applicant cites Department of Defense (DOD) Instruction (DODI) 1241.2 (Reserve Component (RC) Incapacitation System Management), subparagraph 6.6.3.2, that states an RC member ordered to AD for a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty (LD) shall be continued on AD until the member is determined fit for duty or the member is separated or retired as a result of an Integrated Disability Evaluation System (IDES) determination. He states that everything that caused him to be placed in a non-qualified duty status occurred while he was on AD for a period of more than 31 days. There was no previous record of his condition, the original determination was made while he was on AD, he did not present the symptoms after he was REFRAD, and his illness was found to be "In Line of Duty" (In LD). He states that he was unsuccessful in using his chain of command and MEDCOM to return him to AD pending the outcome of the medical board. He adds the Inspector General (IG), New York ARNG (NYARNG), agrees with his request. 3. The applicant provides copies of his AD orders, medical records, email messages pertaining to the processing of his case, and a letter from The Adjutant General, NYARNG. CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the – * U.S. Marine Corps from 3 September 1998 through 6 August 2003 * ARNG of the United States (ARNGUS) and the Florida ARNG from 7 August 2003 through 26 December 2004 * Air National Guard of the United States and the Florida Air National Guard from 27 December 2004 through 17 April 2008 2. The applicant enlisted in the ARNGUS and the NYARNG on 18 April 2008. He was awarded military occupational specialty 31B (Military Police) and assigned to the 105th MP Company, Buffalo, NY. He was promoted to sergeant/ pay grade E-5 on 20 September 2009. 3. Office of The Adjutant General, State of New York, Latham, NY, Orders 280-127, dated 7 October 2009, ordered the applicant to AD for the period 8 October 2009 to 30 September 2010 for unit mobilization support. 4. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered AD this period on 8 October 2009, was honorably REFRAD on 30 September 2010, and transferred to the 105th MP Company, NYARNG. He completed 11 months and 23 days of net active service this period. It also shows the separation authority as Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, based on completion of required active service with Separation Program Designator code "MBK" (Completion of Required Active Service). 5. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was seen at 2300 hours on 6 March 2010 at St. Joseph's Hospital for esophagi varices with bleeding. The investigating officer (IO) indicated the applicant was on active duty for training (ADT) status at the time. He noted, "Soldier was at drill when he became faint and lite-headed [sic]. Soldier was sent home then later that night went to [the] hospital." The LD investigation shows the injury was considered to have been incurred "In LD" and that a formal LD was required. The LD was signed on 13 January 2011. 6. A DD Form 261 (Report of Investigation LD and Misconduct Status), dated 20 May 2011, pertaining to the applicant shows the IO noted the applicant's symptoms manifested during drill period on 6 March 2010. It shows in item 10 (Basis for Findings), block g (Remarks), "Soldier was in ADT status when in March 2010, he checked himself into a local hospital complaining of light headedness. The subsequent diagnosis and treatment determined that this Soldier suffers from primary biliary cirrhosis of the liver, a condition that would take 1–5 years to develop. Therefore, the injury existed prior to service [EPTS]." It also shows in – * item 11 (Findings), the IO indicated, "Not In Line of Duty-Not Due to Own Misconduct" * item 12 (IO), the IO did not signed the form * item 13 (Action by Appointing Authority), an "X" indicating "Disapproved" and the form was digitally signed on 12 August 2011 * item 14 (Action by Reviewing Authority), an "X" indicating "Disapproved" [this item is otherwise blank pertaining to the reviewing authority] * item 15 (Final Approving Authority), is blank (no entry) pertaining to an approved finding * item 19 (Appointing Authority – Reasons and Substituted Findings), the entry "Concur with IO condition would develop over a period of 1–5 years" * item 20 (Reviewing Authority – Reasons and Substituted Findings), "IAW [in accordance with] AR 600-8-24 [LD Policy, Procedures, and Investigations], paragraph 4-8c, this LD determination should be 'Not in Line of Duty'. Evidence and information relative to this disease indicates that the Solder had the condition or the condition was manifesting prior to his entry on duty orders, October 2009. Additionally, military service would not aggravate this disease since primary causes are genetic or results of infections. EPTS conditions not aggravated by military service will be determined NLD [Not Line of Duty] (paragraph 4-8c(2)). There is not sufficient evidence in the investigation to disprove the aggravation of the disease." 7. A DD Form 261, dated 20 May 2011, pertaining to the applicant shows the IO noted the applicant's symptoms manifested on 6 March 2010. It shows in item 10, block g, "Soldier was in ADT status when in March 2010, he checked himself into a local hospital complaining of light headedness. The subsequent diagnosis and treatment determined that this Soldier [was diagnosed with] esophageal varices with bleeding." It also shows in – * item 11 , the IO indicated "In LD" * item 12, the IO digitally signed the form on 27 September 2011 * item 13, the appointing authority entered an "X" indicating "Approved" and digitally signed the form on 27 September 2011 * item 14, the reviewing authority entered an "X" indicating "Approved" and digitally signed the form on 3 October 2011 * item 15, the final approving authority entered the finding "In Line of Duty- EPTS-Service Aggravation" and digitally signed the form on 17 October 2011 * item 19, the appointing authority entered, "Concur with IO condition occurred on or was aggravated 'In Line of Duty'. No evidence of esophageal varices bleeding prior to entering on active duty. Soldier on active duty an extended amount of time before symptoms appeared." * item 20, the reviewing authority entered, "Concur with finding of IO, Surgeon, and JAG [Judge Advocate General'], 'In Line of Duty'." 8. U.S. Army Human Resources Command (HRC), Fort Knox, KY, Orders A-04-305077, dated 5 April 2013, ordered the applicant to AD for one (1) day, on 20 March 2013, to participate in an RC Managed Care Evaluation/ Disability Evaluation System related to medical appointments. 9. On 2 April 2013, a Medical Evaluation Board (MEB) was convened at Kenner Army Health Clinic, Fort Lee, VA. a. The MEB considered the applicant's medical records, laboratory findings, physical examination, and MEB narrative summary (NARSUM). (1) The MEB determined the condition of esophageal varices with bleeding secondary to primary biliary cirrhosis with hepatitis and portal hypertension (approximate date of origin of 10 March 2010) was medically unacceptable and that the condition was incurred while entitled to base pay. (2) The MEB also determined the following conditions/defects were found medically acceptable – * gastroesophageal reflux disease * right inguinal hernia, repaired * hernia scar * lumbar back strain * plantar fascitis * vitiligo b. The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB). 10. A DA Form 199 (Informal PEB Proceedings) shows a PEB convened on 26 June 2014 in the National Capital Region. The PEB considered the applicant's MEB diagnoses, MEB NARSUM, physical profile, Department of Veterans' Affairs (VA) Compensation and Pension (C&P) Examination, and VA Proposed Rating Decision. The case was adjudicated as part of the IDES. a. The PEB considered MEB Diagnosis 1 (VA Schedule for Rating Disabilities (VASRD) 7312), antinuclear antibody negative primary biliary cirrhosis with hepatitis with esophageal varices with bleeding, referred as esophageal varices with bleeding secondary to primary biliary cirrhosis with hepatitis and portal hypertension (on 7 March 2010), and found it unfitting. b. The PEB also considered MEB Diagnoses 2–7 (i.e., gastroesophageal reflux disease; right inguinal hernia, repaired; hernia scar; lumbar back strain; plantar fasciitis; and vitiligo) both individually and in combination with other conditions. The MEB indicated that these conditions met medical retention standards and the PEB did not find these conditions to be unfitting. c. The PEB recommended a combined rating of 70 percent (%) and permanent disability retirement. d. The PEB President signed the PEB proceedings on 26 June 2014. e. The PEB Liaison Officer affirmed with her signature that she had informed the applicant of the findings and recommendations of the PEB, and explained to him the results of the findings and recommendations. f. On 2 July 2014, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. He also indicated that he did not request reconsideration of his VA ratings. g. On 7 August 2014, the Chief, Operations Division, U.S. Army Physical Disability Agency (USAPDA), Alexandria, VA, affirmed the applicant's PEB proceedings. 11. Office of The Adjutant General, Joint Force Headquarters, Latham, NY, Orders 239-1006, dated 27 August 2014, discharged the applicant from the ARNG effective 10 September 2014, transferred him to the USAR Control Group (Retired Reserve), and placed him on the permanent disability retired list. 12. Headquarters, USAPDA, Arlington, VA, Order D 219-31, dated 7 August 2014, released the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability (IAW Title 10 (Armed Forces), U.S. Code (USC), section 1204), and placed him on the retired list effective 11 September 2014 in the retired grade of rank of E-5. He was credited with 11 years, 5 months, and 20 days for disability retirement and 15 years, 8 months, and 28 days for basic pay. 13. New York State, Military and Naval Affairs, letter, dated 13 May 2015, shows The Adjutant General, NYARNG, responded to the applicant's request for continuation on orders for the purpose of completion of the medical board process and the processing of a LD determination. a. The applicant was advised that his request for continuation of ADT after 30 September 2010 was denied by the NYARNG based on culmination of duty requirements and not based on his medical condition. (The letter shows this information had been previously conveyed to the Honorable Brian H____, U.S. House of Representatives, in a memorandum dated 28 June 2011.) b. The Adjutant General stated, "We have reviewed our records and confirmed that you were administratively and medically clear to continue on orders on 30 September 2010, but were not continued because your mission was complete. This recent review of your request for continuation on orders after 30 September 2010 is also denied." 14. In support of his application the applicant provides the following documents: a. Sisters of Charity Hospital, St. Joseph Campus, Catholic Health System, Cheektowaga, NY, medical record, dated 8 March 2010, that shows the applicant presented with acute gastroesophageal bleeding secondary to esophageal varices with possible underlying cirrhosis of the liver and he underwent a gastroscopy with variceal banding procedure. b. Email messages between the applicant and ARNG officials, including some from the Office of the IG, NYARNG, that span the period 11 February 2011 to 18 June 2013. (1) The applicant presented information pertaining to his AD status, LD, and the processing of his case. He stated that at the time of his illness he was on AD for a period of more than 31 days and he had more than 8 years of AD service. Therefore, according to the 8-year rule, the illness is considered service-connected, even if it is a pre-existing condition. (2) The IG provided information from applicable regulations and concluded that MEDCOM incorrectly cleared the applicant for duty, his chain of command failed to conduct/complete a timely LD, and should have made a determination while he was on AD for operational support (ADOS) orders to enter the IDES process. The IG also found the applicant was entitled to either continuation on AD for IDES processing or incapacitation (INCAP) pay during that period. The IG advised the applicant that he believed he should petition the Army Board for Correction of Military Records (ABCMR) and also recommended he pursue appeal of his LD before petitioning the ABCMR. 15. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, VA, dated 27 October 2017. (The advisory opinion included input from the ARNG, Office of the Chief Surgeon.) a. The NGB advisory official provided a summary of the case and stated, "The Soldier was notified in a letter from The Adjutant General of the NYARNG on 13 May 2015, his removal from ADT orders was based on the culmination of duty requirements and not his medical condition. Additionally, U.S. Army HRC determined the applicant's illness to be Not In Line of Duty–Not Due to Misconduct on 17 May 2017. The LD investigation notes that although the Soldier was in an 'authorized status', status does not support a LD determination IAW AR 600-8-24, paragraph 3-4b. HRC determined the Soldier's diagnosis of primary biliary cirrhosis was not service-connected or service aggravated. Although the PEB found the Soldier's illness to be LD, the agencies that process cases for physical disability separation are not bound by prior LD or NLD determinations." b. He noted that the Chief Surgeon conducted a thorough review of the applicant's medical records. The Chief Surgeon opined, "…based on the Not In Line of Duty determination the Soldier should not have been retained on duty for treatment." c. The NGB advisory official recommended denial of the applicant's petition. 16. On 30 October 2017, the applicant was provided a copy of the NGB advisory opinion in order to allow him the opportunity to submit comments or a rebuttal. 17. On 4 December 2017, applicant's counsel provided a response to the NGB advisory opinion. Counsel stated his firm had been retained by the applicant. a. Counsel requested that the Board disregard the recommendation of the NGB advisory opinion. b. He stated that the advisory opinion wholly avoids the failure to comply with Army regulations during the MEB/PEB process, oversimplifies the issues, and focuses on the 2017 LD determination to explain actions that occurred in 2010. The issue is that the applicant had a medically unfitting condition that was incurred while on AD. The command and MEDCOM were aware of the condition and the applicant was told he was being referred for a medical evaluation while on AD. However, neither an LD nor a medical evaluation was completed and the applicant was REFRAD. c. Counsel referred to DODI 1241.2, paragraph 6.6.3.2 (i.e., a RC Soldier on AD for a period of 31 days or more and who incurs an injury, illness or disease will be referred to the IDES) and AR 600-8-24, paragraph 2-1 (i.e., Soldiers who are on AD for a period of more than 30 days will not lose their entitlement to medical and dental care, even if injury or disease is found to have been incurred NLD). He stated the applicant's LD was not timely completed and he no longer received the benefits he was required to receive. He added that AR 40-501 (Standards of Medical Fitness), paragraph 3-5 (Abdominal and gastrointestinal defects and diseases), lists the causes for referral to an MEB and includes cirrhosis of the liver with recurrent jaundice, ascites, or demonstrable esophageal varices or history of bleeding therefrom. Counsel noted that Army officials failed in their duties to ensure compliance with the above in the applicant's case. d. Counsel referred to the email messages from the NYARNG IG that offer evidence that neither an LD nor an MEB was conducted prior to the applicant being REFRAD. He added that, on 15 March 2011, the Deputy State Surgeon, MEDCOM, NYARNG, conceded that the applicant should not have been cleared following the discovery of the unfitting medical condition in 2010. e. Counsel offered comments on the ridiculousness of the untimely HRC "NLD" finding and the NGB advisory official's reliance on the untimely and improper finding. He concluded the advisory opinion is not supported in fact or regulation. However, the assertion that a Soldier should not be separated until completion of an LD and medical evaluation is accurate and should be relied upon. f. Counsel provided 11 enclosures (some previously summarized in this Record of Proceedings) that include, in pertinent part, the following additional documents: (1) Correspondence pertaining to investigation of the applicant's case conducted by the IG, NYARNG, that includes letters, email messages, and documents obtained under the Freedom of Information Act. They show, in pertinent part, the IG concluded that MEDCOM incorrectly cleared the applicant for duty and should have made a determination while he was on ADOS orders that he be entered into the MEB/PEB process; his chain of command and human resource officials failed to conduct and complete a timely LD while he was on ADOS orders; and he was entitled to either INCAP pay or to remain on ADOS orders for the MEB/PEB process. (2) Joint Force Headquarters – MEDCOM, Office of the State Surgeon, NYARNG, Watervliet, NY, Memorandum For Record, dated 15 March 2011, subject: [Applicant's] Medical Case, under the signature block of the Deputy State Surgeon. It shows an outline of the chronological record of the applicant's case and, in pertinent part – * March or April 2010 – applicant self-reported his medical condition (symptoms of blood loss secondary to esophageal varices bleeding in February 2010) * May 2010 – information of diagnosis of esophageal varices and portal hypertension * September 2010 – case manager overlooked primary diagnosis of primary biliary cirrhosis and cleared him for deployment * January 2011 – medical case reviewed; applicant should not have been medically cleared * February 2011 – permanent profile initiated * March 2011 – applicant's case referred for medical board (3) Applicant's timeline of relevant events, dated 6 April 2011, to Mr. K__. (4) Orders issued to the applicant by the Office of The Adjutant General, Joint Force Headquarters, Latham, NY, and shows the following actions – * Orders 280-127, dated 7 October 2009, ordered to ADT from 8 October 2009 to 30 September 2010 * Orders 335-179, dated 1 December 2010, ordered to AD in support of Operation New Dawn on 8 March 2011 (later revoked) * Orders 026-057, dated 26 January 2011, revoked Orders 335-179, dated 1 December 2010 * Orders SAD 255-1550, dated 12 September 2011, ordered into active military service of the State of NY in support of Operation Irene from 27 August to 3 September 2011 * Orders SAD 302-1289, dated 28 October 2012, ordered into active military service of the State of NY in support of Operation Sandy on 28 October and 29 October 2012 * Orders 184-099, dated 3 July 2013, ordered to annual training from 8 July to 12 July 2013 * Orders 184-100, dated 3 July 2013, ordered to annual training from 15 July to 19 July 2013 (5) VA Western NY Healthcare System, Batavia, NY, letter, dated 9 May 2013, that shows the applicant was seen for a history of antimitochondrial antibodies negative primary biliary cirrhosis (diagnosed at Strong Memorial Hospital in August 2012). (6) The applicant's civilian medical and military service treatment records that, in pertinent part, show – * on 22 March 2010, a liver, needle biopsy showing mild portal expansion and fibrosis with no evidence of steatosis or cirrhosis * on 8 September 2010, a diagnosis of esophageal varices, portal hypertension REFERENCES: 1. AR 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the established standards required for the individuals. These medical conditions and physical defects, individually or in combination, are those that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) May compromise or aggravate the Soldier's health or well-being if they were to remain in the military service. This may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military service. b. Chapter 3, paragraph 3-5 (Abdominal and gastrointestinal defects and diseases), lists the causes for referral to an MEB and shows in subparagraph d, "Cirrhosis of the liver with recurrent jaundice, ascites, or demonstrable esophageal varices or history of bleeding therefrom." 2. AR 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier and provides standards and considerations used in determining LD status. a. Chapter 2 (LD Determinations), paragraph 2-2 (Reasons for conducting LD investigations), in pertinent part, shows in subparagraph d, disability retirement and severance pay. (For Soldiers who sustain permanent disabilities while on AD to be eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes. One of these requirements is that the disability must not have resulted from the Soldier's "intentional misconduct or willful neglect" and must not have been "incurred during a period of unauthorized absence." PEB determinations are made independently and are not controlled by LD determinations. However, entitlement to disability compensation may depend on those facts that have been officially recorded and are on file within the Department of the Army. This includes reports and investigations submitted IAW this regulation. b. Chapter 3 (The LD Investigation Process) shows in – * Section I (Informal LD Investigations) – * paragraph 3-1, the unit commander will conduct an informal LD investigation when the circumstances warrant or require one * Table 3-1 (Processing Informal Investigations), the completion time is 40 calendar days after the incident * Section II (Formal Investigations), Table 3-2 (Processing Formal Investigations), the completion time is 75 calendar days after the incident c. Chapter 3, paragraph 3-4 (LD determination), the final determination of an informal LD investigation can result in a determination of "In LD" only, except for those cases described in paragraph 4-10 (Intoxication and drug abuse). The mere fact that the Soldier was in an "authorized status" (duty, pass, leave, and so forth) does not support a determination of "In LD" in and of itself. 3. DODI 1241.2 (RC Incapacitation System Management), dated 3 May 2001, shows in paragraph 6 (Procedures), subparagraph 6.6 (Authority to Order a RC Member to AD or Continue the Member on AD to Receive Authorized Healthcare), section 6.6.3.2, a RC member on AD under a call or order to AD specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease "In LD" shall, with the member's consent, be continued on AD upon the expiration of call or order to AD until the member is determined fit for duty or the member is separated or retired as a result of an IDES determination. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the IDES. a. The Medical Treatment Facility (MTF) initiates a Medical Review Board (MRB)/MEB when it is determined that a Soldier's treatment or hospitalization for a medical impairment has reached a point of stability and the course of recovery is relatively predictable, and further treatment will not cause a Soldier to meet medical retention standards. This determination is referred to as the Medical Retention Determination Point (MRDP). The MRB/MEB validates whether the Soldier meets medical retention standards. If the Soldier does not meet medical retention standards, the MTF refers the case to the applicable PEB. b. Chapter 5 (Adjudicative Policy for PEB and USAPDA), paragraph 5-23 (LD requirements for disability cases), subparagraph c (Relationship to PEB determinations), in pertinent part, shows that neither the PEB nor USAPDA may overrule an approved LD. When the PEB or USAPDA believes an LD determination is questionable, the PEB or USAPDA is authorized to request HRC (AHRC-PDC-C) to confirm the correctness of the LD determination. 5. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant and his counsel contend that the applicant's records should be corrected by voiding his 30 September 2010 separation action and reinstating him on AD effective 1 October 2010 through 10 September 2014. They also request personal appearance before the Board. 2. The request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and his counsel are sufficient to render a fair and equitable decision at this time. 3. The applicant was ordered to ADT from 8 October 2009 through the period 30 September 2010. a. On 6 March 2010, he was seen at a civilian hospital for esophagi varices with bleeding. b. A LD investigation was not timely completed prior to his REFRAD on 30 September 2010. c. On 13 January 2011, an informal LD investigation was completed and his condition was considered to have been incurred "In LD" and that a formal LD was required. d. On 20 May 2011, a formal LD investigation was initiated pertaining to the applicant's condition. (1) It is noted that on, 28 June 2011, The Adjutant General, NYARNG, informed a congressman that the applicant's request for continuation of ADT after 30 September 2010 was denied based on culmination of duty requirements and not based on his medical condition. This offers evidence that the applicant requested continuation of AD to participate in the IDES process. (2) A DD Form 261 was completed that shows the IO documented a subsequent diagnosis of primary biliary cirrhosis of the liver and recommended a finding of "Not In Line of Duty-Not Due to Own Misconduct" on 12 August 2011. The appointing and reviewing authorities concurred with the finding. However, the evidence of record fails to show that the approving authority took any action to affirm the LD finding. (3) Another DD Form 261 was completed that shows the IO documented a subsequent diagnosis of esophageal varices with bleeding and recommended a finding of "In LD" on 27 September 2011. The appointing and reviewing authorities concurred with the finding. The final approving authority approved the finding of "In LD-EPTS-Service Aggravation" on 17 October 2011. 4. Records show the applicant was ordered to AD on 20 March 2013 to participate in the RC Managed Care Evaluation/Disability Evaluation System. a. On 2 April 2013, an MEB determined the applicant's condition of esophageal varices with bleeding secondary to primary biliary cirrhosis with hepatitis and portal hypertension was medically unacceptable and that the condition was incurred while entitled to base pay. b. On 26 June 2014, a PEB found the applicant's condition of antinuclear antibody negative primary biliary cirrhosis with hepatitis with esophageal varices with bleeding (onset 7 March 2010) unfitting. The PEB recommended a combined rating of 70% and permanent disability retirement and the findings and recommendation were approved. c. The evidence of record shows that neither the PEB nor the USAPDA overruled the 17 October 2011, approved "In LD" finding. Given the favorable findings and recommendation of the PEB, there was no requirement to contact HRC regarding the approved “In LD” finding. d. Accordingly, the applicant was issued orders that released him from assignment and duty because of physical disability incurred while entitled to basic pay and placed him on the retired list effective 11 September 2014 in the retired grade of E-5. 5. The evidence of record shows, on 17 May 2017, HRC determined the applicant's illness to be Not LD–Not Due to Misconduct. The HRC determination cited AR 600-8-24, paragraph 3-4b, "The mere fact that the Soldier was in an 'authorized status' does not support a determination of 'In LD' in and of itself." a. The HRC determination offered no other basis or reason for reversal of the 17 October 2011 approved "In LD" finding. b. However, HRC did offer that the agencies that process cases for physical disability separation are not bound by prior “In LD” or NLD determinations. c. In this case, it is reasonable to conclude that the agencies that processed the applicant's case for physical disability separation are not bound by the after- the-fact "Not LD" determination that was made by HRC (i.e., more than 5 years and 7 months after the LD was approved by the Chief, NGB, and nearly 3 years after the USAPDA approved the applicant's PEB proceedings). 6. The preponderance of the evidence strongly suggests the applicant had an “In LD” medical condition that qualified him for continuation on AD orders effective 1 October 2010 to allow for further medical evaluation and treatment. Of note is the fact that he was later retired due to disability based the condition. There is no evidence indicating HRC’s determination in 2017 changed his status as permanently retired due to disability. BOARD DATE: 20 March 2018 DOCKET NUMBER: AR20170009365 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he served on active duty during the period 1 October 201 O through 1 O September 2014 with all associated service/retirement point credit, pay and entitlements (less any payments he may have received in the form of military pay and/or incapacitation pay during this same period). CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. Enclosure //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170009365 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170009365 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2