ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20180000156 APPLICANT REQUESTS: * Medical retirement be placed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) * Date of retirement be changed to date he was placed on the Permanent Disability Retirement List (PDRL) * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Privacy release form, 6 December 2017 * Self-authored letter, 11 December 2017 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), 15 June 2011 * DA Form 199, 12 June 2013 * VA rating decision, 30 September 2009 * VA rating decision, 18 March 2013 * Email from office of Senator X__ X__, 27 December 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in effect, his medical retirement due to armed conflict service connected disabilities listed on his DA Form 199 and the date he was retired by the Army Physical Disabilities Agency be added to his DD Form 214. The date should reflect active duty ending on the date of 20 June 2013, the date he was permanently medically retired; the day his career officially ended. This will require the date from the end of terminal leave date 19 October 2007 to the date the Army finished the PEB process 20 June 2013. a. He was injured in Iraq 20 June 2007. He came home in September 2007. He was in the VA medical system for treatment before coming off of terminal leave. The New Hampshire Army National Guard (NHARNG) violated Army policy by placing him on guard status, instead of continuing him on active duty and placing him in a medical holding company, Fort Drum/Walter Reed. NHARNG discharged him against Army policy. Army policy says that when an active Soldier has a service-connected injury prior to coming off of active duty the Soldier is to remain on active duty until the condition is stabilized and or a determination is made to medical evaluation board (MEB and PEB). He was medically boarded by the Army after being rated by the VA, it should have been in the reverse order. The Army evaluated him and found him to be a service connected disabled veteran who was injured in Iraq from armed conflict. The documents prove this and the Army never issued him a DD Form 214 at his medical retirement which is required. 3. The applicant provides: a. Privacy release form, 6 December 2017 requesting assistance is getting his post 911 GI bill benefits at 100%. b. Self-authored letter, 11 December 2017, addressed above. c. DA Form 199 PEB Proceedings, 15 June 2011 showing he was physically unfit and recommended a combined rating of 90% and placed on the temporary disability retired list (TDRL). d. DA Form 199, 12 June 2013 showing he was physically unfit and recommended a combined rating of 90% and that his disposition be: permanent disability retirement. e. VA rating decision, 30 September 2009 showing his disabilities resulted in a combined evaluation for compensation of 80% from 20 October 2007. Also individual unemployability granted. f. VA rating decision, 18 March 2013 showing his disabilities changed resulting in a combined evaluation for compensation of 90% from 10 February 2012. Also individual unemployability granted 20 October 2007. g. Email from office of Senator X__ X__, 27 December 2017 requesting assistance to correct the applicant’s military records. 4. A review of the applicant’s service records shows the following: a. Having had prior service in the U.S. Marine Corp, he enlisted in the NHARNG on 10 November 1998. He was released from NHARNG on 14 January 2003 to accept appointment as a commissioned officer in the ARNG. He was later appointed as a Reserve commissioned officer of the NHARNG and executed an oath of office on 15 January 2003. b. He entered active duty on 19 January 2003 to complete Field Artillery Officer Basic Course. He was honorably released from active duty (REFRAD) on 11 June 2003, to the control of his ARNG unit. c. He accepted appointment as a Reserve commissioned officer and executed an oath of office on 17 October 2003. d. He entered active duty on 4 July 2006 and served in Iraq in support of Operation Iraqi Freedom from 16 September 2006 until 12 September 2007. On 19 October 2007 he was REFRAD for completion of required active service. e. His DD Form 214 shows he was honorably released from active duty in accordance with chapter 2-25a of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) due to completion of his required active service. f. Following his release from active duty, he returned to his ARNG unit where he continued to drill and perform inactive service. g. On 22 April 2011, he was seen by medical authorities who determined some of his medical conditions failed retention standards. MEB proceedings which referred him to PEB stated the following: * Chronic post-traumatic stress disorder (PTSD) * Major depression * Chronic headaches due to traumatic brain injury (TBI) * Anosmia, permanent, secondary to PTSD and/or TBI history * Cognitive disorder due to TBI * Chronic right wrist pain and limitation of motion * Chronic low back pain with spondylosis due to trauma and overuse * Chronic right hip with degenerative changes * Chronic bilateral knee pain due to overuse * Right ankle pain * Bilateral sensorineural hearing loss h. On 28 April 2011 he was issued a DA Form 3349 (Physical Profile) permanent profile. i. On 14 July 2011, an informal PEB convened and found the applicant's medical conditions (PTSD, TBI, headaches, wrist pain, degenerative arthritis lumbar spine, and chronic right hip pain with degenerative changes) were unfitting and assigned a combined rating of 90%. The PEB determined his conditions were not stable enough for final adjudication and recommended his placement on the TDRL with reexamination in March 2012. He concurred and waived his right to a formal hearing. j. On 27 July 2011, Order 208-007 separated him from the ARNG on 17 August 2011 place him on the TDRL on 18 August 2011 for disability retirement. His percentage of disability is 90% is based on injury or disease received in line of duty (LOD) as a direct result of armed conflict. He received a NGB Form 22 (National Guard Report of Separation and Record of Service). k. On 12 June 2013, following a TDRL examination, a TDRL PEB determined the applicant continued to have disabling conditions of post-traumatic stress disorder and major depression, residuals of traumatic brain injury, degenerative arthritis lumbar spine, chronic headaches, chronic right (non-dominant) wrist pain and limitation of motion, chronic right hip pain with degenerative changes. The TDRL PEB found him unfit for duty and his case was ready for final adjudication. The PEB recommended a 90% disability rating and placed on the PDRL. He appears (document is nearly illegible) he concurred and waived a formal hearing of his case on 18 June 2013. l. Order D170-11, shows he was removed from the TDRL on 19 June 2013 and placed on the PDRL on the following date. He was assigned a 90% disability based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrument of war period as defined by law. 5. By regulation, Army Regulation (AR) 15-185 (ABCMR) applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation (AR) 636-5, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. a. The applicant was released from active duty on 19 October 2007, due to completion of his required active service (mobilization), not due to disability. When he was REFRAD, he was no longer on active duty. He was released to the ARNG. b. It was some 4 years later, while in the ARNG, when medical authorities determined his medical conditions failed retention standards, and because his conditions were incurred while on active duty, he was referred to the disability system. The period from October 2007 to the date he entered the disability system was not active duty and did not warrant the issuance of a DD Form 214. When he was placed on the TDRL he did not qualify for the issuance of a DD Form 214, which is a record of continuous active duty c. When the applicant was placed on the TDRL, he was no longer in the ARNG, he was retired. Some 2 years later, his case was ready for final adjudication. The TDRL PEB placed him on the permanent disability list. During the period between TDRL and PDRL, he was in a retired status, he was not on active duty. A DD Form 214 will not be prepared for Soldiers removed from the TDRL. 7. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management and explains separation document preparation. It also states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier’s service. Paragraph 5-2 explains when not to prepare a DD Form 214. It states a DD Form 214 will not be prepared for personnel being removed from the TDRL. 8. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that a fair and equitable decision could be reached without a personal appearance by the applicant. Additionally, the Board found relief was not warranted. The applicant entered the disability system in 2011, and was subsequently placed on the temporary disability list. Once he was retired, he was no longer in an active status; he was retired. In 2013, he was reevaluated and found to be permanently retired. The period between temporary and permanent disability was in a retired status and no DD Form 214 is issued for a period of retirement. As a result, the Board found no error or injustice which would warrant making a change to the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. A DD Form 214 will not be prepared for Soldiers removed from the TDRL. 4. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management and explains separation document preparation. It states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier’s service. Paragraph 5-2 explains when not to prepare a DD Form 214. It states a DD Form 214 will not be prepared for personnel being removed from the TDRL. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply 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. ABCMR Record of Proceedings (cont) AR20180000156 7 1