BOARD DATE: 19 January 2021 DOCKET NUMBER: AR20200008442 APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States Court of Federal Claims. The Court directs the ABCMR to consider the applicant's request for correction of his records. Specifically, for: * remaining on active duty orders for the period 1 November 2015 – 9 May 2018 under an Active Duty Medical Extension (ADME) order while undergoing a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) * payment of applicable back pay and allowances * accrual of ordinary leave during the period mentioned above after correction of his records APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Court remand * U.S Court of Federal Claims Docket Number 20-XXXC * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 November 2015 * DA Form 4187 (Personnel Action), dated 21 July 2015 * Memorandum, Subject: Commander's Statement for the applicant, dated 9 July 2015 * Memorandum for Record (MFR), Subject: Request for Extension to Undergo MEB for the applicant, dated 16 July 2015 * MFR, Subject: Statement of Medical Condition and Treatment Plan, dated 23 November 2015 * DD Form 214, dated 24 September 2014 * Leave and Earnings Statement (LES), check date 15 July 2015 * DA Form 3349 (Physical Profile), dated 9 July 2015 * DA Form 2823 (Sworn Statement), dated 25 September 2014 * Medical records (10 pages), dated between 16 February 2005 and 15 June 2015 * Email correspondence * Narrative summary, dated 29 January 2018 * DA Form 199 (Informal PEB Proceedings), dated 28 February 2018 * Orders Number D, dated 5 April 2018 * Defendant's motion for a voluntary remand and stay * Opinion and order of the court * Memorandum in support of application for correction of military records * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 29 January 2018 FACTS: 1. The Army Review Board Case Tracking System (ACTS) did not reveal another application associated with this case. The applicant did not exhaust his administrative remedies in regards to a consideration of his case by the ABCMR, to which he is entitled. The applicant filed this instant lawsuit. Therefore, the parties asked to remand the case for the ABCMR to hear and consider the ADME, applicable back pay and allowances, and leave accrual issue. Both parties requested that the Court grant the motion to voluntarily remand the case to the agency for further action and stay proceedings until a determination is rendered by the ABCMR. A federal agency's motion for a voluntary remand is commonly granted because it allows an agency to correct its own potential errors without expending the resources of the court in reviewing a record that may be incorrect or incomplete. The remand will cover matters that were not before the ABCMR for consideration. 2. On 22 September 2014, having had prior enlisted service in the Regular Army, the applicant enlisted in the Alabama Army National Guard (ALARNG). 3. The applicant, through counsel, provides a DA Forms 2823, dated 25 September 2014, authored by Staff Sergeant D- E- wherein he states in 2005 he witnessed the applicant fall into a manhole cover while they were deployed. 4. On 13 December 2014, Orders Number 347-054, issued by the Joint Forces Headquarters, ALARNG, ordered the applicant to active duty for training for the period 16January – 11 November 2015, to attend training in Military Occupational Specialty (MOS) 68A (Biomedical Equipment Specialist). 5. The applicant, through counsel, provides a/an - a. memorandum, dated 9 July 2015, Subject: Commander's Statement, showing the applicant's immediate commander while he was on active duty orders provided a statement pertaining to the applicant's past medical history and recommended he be assigned to the Warrior Transition Unit (WTU) for complex medical management. b. a DA Form 3349, dated 9 July 2015, showing the applicant's medical condition was neck pain. The profile was a temporary profile and he was expected to be fully mission capable on 7 October 2015. Section 8 (Functional Limitations and Capabilities and Other Comments) shows the applicant was pending an MEB and the permanent profile was to be done by the MEB office. c. 10 pages of medical records, dated between 16 February 2005 and 15 June 2015 showing the applicant's neck pain management while in the Regular Army and then while he was on active duty orders. d. LES showing the applicant's pay and entitlements for the pay period ending on 15 July 2015. e. MFR, dated 16 July 2015, Subject: Request for Extension to Undergo MEB for the applicant, wherein the applicant's primary care physician while he was on active duty orders completed the MFR to convey his clinical opinion regarding extension of active duty orders based on the applicant's medical history. f. DA Form 4187, dated 21 July 2015, showing a request for ADME. This form is void of the applicant's signature endorsement, however, his immediate commander recommended approval. 6. On 1 November 2015, the applicant was honorably released from active duty for training and returned to his ARNG unit. 7. The applicant, through counsel, provides a/an- a. MFR, dated 23 November 2015, Subject: Statement of Medical Condition and Treatment Plan, wherein the applicant's primary care physician while on active duty orders provides a statement after the applicant was released from active duty which addresses the applicant's treatment plan, his declination for surgery, and at the time he (primary care physician) did not have a medical management plan for the applicant. It was his recommendation that the applicant be referred to an MEB. b. Email correspondence, dated 27-28 January 2016, wherein the applicant seeks to be placed on active duty orders predicated on the fact that he while on active duty consented to remain on active duty for his MEB referral and was improperly discharged. He was now seeking redress under Article 138 of the Uniform Code of Military Justice (UCMJ). 8. On 26 February 2016, by memorandum, the National Guard Bureau (NGB) informed the ALARNG of the following: a. The application was reviewed by the NGB Human Resources Personnel Medical Action Team and found that the applicant does not meet the medical fitness standard for retention in accordance with AR 40-501 (Standards of Fitness), chapter 3 and 7, for having been issued a permanent profile and by being recommended for MEB. Based on these facts, he currently does not qualify for the WTU program. b. In addition, the submitted ADME packet does have a qualifying DA Form 2173 (Line of Duty (LOD)) attached. The mentioned re-aggravation LOD that was completed by the San Antonio Military Medical Center LOD office back in 10 September 2015 should be submitted with this packet. c. The injuries with pre-approved LOD AL-15-00586 being referred to for this ADME request has occurred during Regular Army active duty time period which is listed as ineligibility in accordance with WTU Consolidated Guidance-20 March 2009, chapter 2-11a. d. Listed below are the discrepancies and additional information that needed to be addressed if resubmitting. (1) According to the statement of medical condition and treatment plan, dated 23 November 2015, signed by Dr. Q-, the applicant is to be referred to MEB. Status of MEB process is requested. (2) Please provide adjudication outcome by MEB on the MFR for request of extension to undergo MEB for the applicant, dated 16 July 2016, signed by Dr. Q-, requesting a 6-month extension to allow Service Member to undergo MEB. (3) Missing documentation supporting duty status when the injury was incurred. (4) Provide current attending physician statement and treatment plan that is within 30 days from the date of ADME request. The current medical treatment plan submitted is dated 23 November 2015. (5) Submit current medical documentation to substantiate the condition requested. Submitted medical documents is dated 15 June 2015. (6) Replace the submitted LES document dated 15 July 2015 to the most current one available. (7) Personnel Action Form (DA Form 4187) needed the following corrections: * 1a. Block 2 address should read "ATTENTION: AHRC-PLM-MS, 200 Stovall Street, Alexandria, VA 22322" * 2b. Section II, block 7 "from and to" is blank; It should read, "from M-Day to T-10 12301 (h)" * 3c. Section Ill, block 8, ADME is not selected * 4d. Section V, block 11 is missing a recommendation * 5e. Section V, block 13 is missing commander's signature (8) Based on this review, the packet will not be forwarded for final determination by the Warrior Transition Command (WTC). 9. The applicant, through counsel, provides a/an- a. Narrative summary, dated 29 January 2018, wherein the Integrated Disability Evaluation System (IDES) physician provides a summary of the applicant's conditions (cervical strain and degenerative arthritis of the cervical spine). b. DA Form 3947, dated 29 January 2018, showing the applicant was evaluated for the following conditions that failed to meet retention standards: * cervical strain; approximate date pf origin 1 January 2005; Existed Prior to Service (EPTS) "no" * degenerative arthritis of the cervical spine; approximate date of origin 1 January 2005; EPTS "no" * lumbosacral strain; approximate date of origin 1 January 2009; EPTS "no" * degenerative arthritis of the of the lumbar spine; approximate date of origin 1 January 2009; EPTS "no" 10. On 28 February 2018, a PEB convened, and the PEB found the applicant physically unfit and recommended a rating of 40 percent and his disposition be permanent physical disability for the following condition(s): * cervical strain and degenerative arthritis of the cervical spine which was reported with an onset of 2005 while deployed to Iraq and falling in a manhole onto his head * lumbosacral strain and degenerative arthritis of the lumbar spine which was reported with an onset of 2009 with complaints of lower back pain with no history of back trauma, while at an undisclosed location 11. On 5 April 2018, Orders Number D 095-34, issued by the U.S. Army Physical Disability Agency (USAPDA), retired the applicant from the ARNG by reason of permanent physical disability. 12. On 9 May 2018, the applicant was honorably retired from the ARNG by reason of permanent physical disability. He completed 3 years, 7 months, and 15 days of net service, with 12 years, 2 months, and 1 day of prior active service. 13. The applicant's records are void of a request for an ADME. Likewise, his record is void of any ADME orders. 14. The applicant, through counsel, provides a/an - a. Defendants' motion for a voluntary remand and stay, dated 28 July 2020, wherein the Court remanded the applicant's case to the Board to consider the applicant's claim. b. U.S. Court of Federal Claims Docket Number 20-XXXC, filed on 20 August 2020, wherein the applicant petitioned the Court to be paid active duty pay that he would have received had he been continued on active duty from 1 November 2015, until his medical retirement. c. Opinion and order of the Court, filed 2020, wherein the applicant's case was remanded to the Board to seek relief within two weeks. 15. Memorandum in support of application for correction of military records, dated 4 September 2020, that states in summary (See memorandum in supporting documents for details): a. The applicant served on active duty the ALARNG before his military disability retirement in 2018. He deployed numerous times to Iraq and Afghanistan. In 2015, the ALARNG ordered him to active duty for training to attend MOS 68A school. During his training, he injured or aggravated his neck and back and was unable to complete his MOS schooling. Instead of being retained on active duty for DES processing at the end of his training, he was separated from active duty without completing school, despite his injuries. He requested to remain on active duty and submitted an application for ADME orders. However, his attempts to remain on or return to active duty were unsuccessful. He entered into the DES, and after the MEB the PEB found him unfit due to his neck and back disabilities, he was medically retired with a 40 percent rating on 10 May 2018. b. He should have been retained on active duty or returned to orders for DES processing on 1 November 2015, until the date of his retirement. c. While serving in the ALARNG, he was ordered to active duty in January 2015 for training, where he aggravated existing neck and back and he was issued several temporary profiles, including a temporary profile for his neck disability. This profile states, "Patient is pending MEB that was ordered. permanent profile is to be done by MEB office." d. On 9 July 2015, his commander submitted a request for ADME orders and transfer to a WTU for "complex medical management,". His treatment plan states that the primary care manager decided to refer him to the MEB. The same physician requested a sic month extension of orders to undergo an MEB. Despite this, he was neither formally sent to an MEB, retained on orders, nor sent to a WTU. e. The applicant repeatedly requested to remain on orders for medical evaluation prior to his separation from active duty on 1 November 2015. Upon his return to the ALARNG, he informally requested return to active duty for a disability evaluation. On 27 January 2016, he formally requested redress under Article 138. He requested a return to active duty under Army Regulation (AR) 40-58 (Warrior Care and Transition Program), which states 'Reserve Component Soldiers on Active Duty orders specifying a period of more than 30 days will, with their consent, be kept on Active Duty for disability evaluation until final disposition by the Physical DES process.' He was improperly discharged in violation of AR 40-58, paragraph 6-2. f. He was finally referred to the DES and the process resulted in his permanent retirement from the Army on 10 May 2018. 16. On 9 October 2020, by memorandum, the U.S. Army Physical Disability Agency (USAPDA) legal advisor provided a memorandum in response to the Board's request for an advisory opinion and requested the action be transferred to Brooke Army Medical Center (BAMC) Joint Base San Antonio, Fort Sam Houston, TX. The memorandum stated: a. AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-24a(2) is the operative regulation. AR 635-200, paragraph 1-24a(2) points to section b; however, that is for members who are retiring or have hit there mandatory retirement date. Section e is the applicable section of how to process an ADME packet. b. It appears from the member's ADME packet it was routed to HRC. If so, then this may have been in error. In either event, the USAPDA does not process ADME packets. Indeed, according to AR 635-200, paragraph 1-24 a(2), it is conceivable that an ADME packet is submitted and processed before the member is even in the DES. The DES begins when a Permanent (P) 3/4 profile is approved by the profile approving authority under AR 40-501. (See AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), paragraph 4-1 e(1). However, AR 635-200, paragraph a(2) merely states the DES process is required or has been initiated. One could argue that the member's provider initiated, or at least attempted to initiate, the DES process on 9 July 2015 by submitting a T3 profile. On 16 July 2015, the provider stated that the member is in the DES. It is likely the provider was confused on how to effectuate a DES case. As mentioned above, a DES case begins when a P3 profile is approved by the profile approving authority. It is likely the T3 profile was never reviewed by the profile approving authority because it would not have triggered a review since it was temporary and not permanent. Thus, while the intent of the provider is made clear by his actions and statements, the result never occurred because the submission of a T3 profile proved to be fatal to starting a DES case. c. Nonetheless, the presented case file does not make it clear what actions occurred between the command, the U.S. Army Human Resources Command (HRC) and the Medical Treatment Facility (MTF). Therefore, the matter should be referred back to the MTF, BAMC. In the alternative, the command may have historical information regarding the request or even HRC, but certainly not the USAPDA. 17. On 10 November 2020, by memorandum, HRC, Fort Knox, KY, provided a memorandum stating they searched their digital and historical files for a potential ADME packet for the applicant and no such file existed. Therefore, their office did not receive an ADME extension request from the applicant. 18. On 10 November 2020, the NGB reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Special Actions Branch opined in pertinent part: a. Recommend disapproval. A thorough review of the applicant’s claim did identify administrative issues that contributed to the current request. In September of 2015, while attending Advanced Individual Training (AIT) at Fort Sam Houston, TX, the applicant aggravated a preexisting injury from his time as a Regular Army Soldier. The applicant’s doctor determined that the applicant needed a permanent profile and referral to a MEB. However, no permanent profile was ever issued to the Soldier. Based on the available evidence the permanent profile was signed but never approved by the next level approval authority. It is not clear why the profile was never approved in that office, but it was not resolved prior to the applicant’s orders expiring and him returning to his State. Without an approved permanent profile, the MEB process cannot occur and the State would have no reason to continue the applicant on orders. Although the ALARNG did not return the applicant to Fort Sam Houston, the State did attempt to enroll him in the ADME program (see NGB memorandum Returned Without Action 2015). In a 2016 memorandum from the NGB, the applicant was informed that his request was being returned without action due to missing documents. The memorandum clearly identified what was required for resubmission, however, there is no evidence available that shows that the packet was ever resubmitted. While the applicant was not admitted to the ADME program he continued to serve as a full drilling guardsmen until he underwent his MEB process in January 2018 and was retired in May 2018. b. The second issue identified in this case was the lack of pay and entitlements claimed by the applicant. When the applicant transferred to the ALARNG in 2014 he was placed on Active Duty Training (ADT) orders to Fort Sam Houston for approximately 10 months. During this time, he was authorized all the pay and entitlements afforded by active duty service. His ADT orders were scheduled to end on 1 November 2015, at which time he was to return to his unit or home of record and revert back to M-Day compensation. The contention that his State removed him from active duty unjustly is not accurate due to the simple fact that his orders were already scheduled to end on 1 November 2015. As previously established, the lack of a permanent profile for the applicant removed any requirement for the applicant to stay on orders. Without a determination stating that he was unfit for duty or needing a MEB, continuation on orders would have been inappropriate. While there may have been some confusion surrounding his release from active duty there was no unjust actions taken against the applicant. c. Based on the evidence provided it is unclear whether administrative error or medical opinion kept the applicant from continuance on order. However, the State attempted to remedy the situation by submitting the ADME packet upon his return to his home State. This also was not completed for undetermined reasons. Ultimately, the applicant continued to serve as a full drilling member of the ALARNG until approximately January 2018 when he began his MEB process. While the applicant’s initial attempt at a MEB was not conducted properly he did ultimately receive his MEB and was medically retired. d. It is the recommendation of this office that the applicant’s request for relief be denied. neither the permanent profile nor the MEB were completed, so there is no factual basis for his claim. The pay and entitlements that he is requesting are a result of service on active duty, However, he did not serve that time in question. The State had no legitimate reason to continue him on orders. Additionally, his successful MEB from the ALARNG shows that enrollment in the ADME program was not a requirement to medically discharge him. Furthermore, there is no way to determine if the applicant would have been medically retired at that time in question; based on his NGB Form 23 (Retirement Points Summary Statement) the applicant was able to successfully serve as a drilling member from November 2015 until January 2018 implying that he was able to perform his duties to standard 19. On 23 December 2020, the applicant through counsel responded to the advisory opinion and stated in in summary (See supporting documents for full details): a. The NGB advisory opinion fails to address the issues raised and its recommendation denying relief is arbitrary and capricious, contrary to law, and unsupported by substantial evidence. The primary error in the NGB advisory opinion focuses on the administrative procedures followed in the applicant's case without consideration as to whether different procedures or actions were required based on the facts of the case and did not address whether the decisions made or the administrative errors rise to the level of an error or injustice. b. This indicates that the NGB Chief, Special Actions Branch, addressed and focused on the propriety of the administrative actions taken in separating the applicant from active duty based on the records. However, that is not the task or question before the ABCMR or NGB in opining on the case. The question and issue before the ABCMR, and by extension NGB, in reviewing the case is whether the conclusion being reviewed is supported by substantial evidence. c. The NGB decision fails in part because it only considered whether, based on the lack of the issuance of a permanent profile in the applicant's case, the decision to separate him without pay on 1 November 2015, was proper based on the paperwork in his case. The propriety of the actions taken based on the paperwork is neither the issue nor the standard required to be addressed. d. The NGB advisory opinion, if relied on and if adopted by the ABCMR, fails the substantial evidence test under Heisig. As the applicant has argued, he failed retention standards under AR 40-501, chapter 3. He required referral to the Army’s DES when he separated from active duty. The referral by the doctor cited in the advisory opinion supports this finding. e. We note that the NGB advisory opinion states that, "The NGB LOD Office was consulted on this recommendation," and that " The ALARNG was consulted on this recommendation." The correspondence and statements by these organizations appear to have been significant enough to merit notice and reference by the NGB. Therefore, we request a copy of all input and correspondence regarding the applicant's case be provided to us and/or be made part of the record in this case. f. We did not allege that "his state removed him from active duty." The fact that the NGB advisory stated this shows that the NGB misapprehended the issue. The applicant was erroneously separated from active duty because at the time of his separation he had one or more conditions that failed retention standards. The suggestion in the NGB’s conclusion that "there was no unjust actions taken against the applicant," fails to address the main issue. g. The NGB advisory opinion however, "did identify administrative issues," with the applicant's case, including issues with an apparent error in the processing of his profiling. This supports a finding that there were errors or injustices in his case and to this extent, we agree with that conclusion. h. Finally, the NGB advisory opinion failed to address several issues that we have raised in complaint, the Memorandum in Support of the application, and the allied documents in this case. The applicant raised points that were not addressed by the NGB advisory opinion. (1) Army regulations require that, when an Army Reservist who is on active duty orders of more than 30 days incurs or aggravates an injury in the LOD, he will be kept on active duty, with his consent, until determined fit for duty or separated through the DES (i.e., the MEB/PEB process). The applicant was injured in the LOD while on active duty training orders of more than 30 days. (2) Although it was requested that the applicant be retained on active duty due to his medical condition, he was released from active duty on 1 November 2015; he was ultimately determined to be unfit for duty through the DES in 2018. This raises substantial and legitimate concerns about the correctness of his November 2015 release from active duty. i. Note that the referenced court filing by the United States was also signed by agency counsel for the Army, and by the counsel for the NGB. This means that the attorneys who signed the motion for remand and represented the United States, the Army, and NGB, all agreed that the applicant's claims raised issues that are "substantial and legitimate." j. The NGB advisory opinion only focused on the lack of a permanent profile being absent from the applicant's records instead of considering whether he required such a profile or whether or not he should have been retained under the provisions of law cited in the complaint and his application for the correction of his military records. The failure of the NGB advisory opinion author to consider the underlying issues instead of the actual situation of the applicant's case makes the opinion not based on substantial evidence. k. Again, the advisory opinion only focused on the profile issue. However, the applicant's request for relief under UCMJ, Article 138, complaint and the failure to properly process that complaint, which sought assistance with returning to active duty, including via his ADME request raises a substantial question as to whether his case was processed properly. l. The USAPDA advisory opinion fails to properly address the issues and is in error. As an initial point, taking the HRC’s memo into account, it appears that there is an error in the advisory opinion from the USAPDA Legal Advisor. The first sentence of paragraph 3 of the opinion states: "3. Analysis: It appears from the member's ADME packet it was routed to HRC. If so, then this may have been in error." However, this contradicts the HRC memorandum that states that there is no record of an ADME packet in their records. m. Oddly, the USAPDA opinion only focuses on the issue of the ADME packet. It does not address, directly, the underlying dispositive issue as to whether or not the applicant had a condition that failed retention standards under AR 40-501, chapter 3, at the time of his separation. The applicant did not raise in the complaint or in our application for the correction of his military records an issue as to whether the USAPDA, or its subordinate element, the PEB, should have acted on an ADME request or the continuation of his orders. It appears that the USAPDA Legal Advisor is recommending denial of our requests based on the jurisdiction of the USAPDA for requests that we have not made of that sub-agency. However, there are other sections of the USAPDA Legal Advisor’s opinion that suggest error or injustice in the applicant's case. n. We note that the "request" seems to indicate an opinion that there were errors or injustices in the applicant's case. That would be the only apparent reason for the "transfer of this action" to BAMC which would necessarily mean consideration by a MEB of this case. While we agree that there were errors or injustices meriting relief, we are reticent to endorse a transfer to an MEB for consideration of this case without clarification of the purpose. It would seem that the MEB, which, under AR 40-400 (Patient Administration) and other regulations, is convened to determine whether or not a Soldier has conditions that fail retention standards under AR 40-501, chapter 3, this has already occurred in the applicant's case. As stated in the enclosed DA Form 3947, which convened on 29 January 2018, the four conditions that failed to meet retention standards were incurred with an approximate date of origin of 1 January 2005 or 1 January 2009. Given that all of these conditions were incurred or aggravated prior to his period of active duty of more than 30 days beginning on 16 January 2015 and continuing through 1 November 2015, it is unclear what the USAPDA Legal Advisor is proposing the MEB to decide. There is no regulatory authority for an MEB to decide issues relating to ADME or the continuation of a member on active duty for disability evaluation processing. Given the clear evidence in the record that the applicant should not have been terminated from his active duty order or should have been returned to active duty, it seem that the ABCMR is well poised to decide the relevant issues in this case. (As was the Court under our complaint). o. The USAPDA advisory opinion concludes with this paragraph, "4. Conclusion: Nonetheless, the presented case file does not make it clear what actions occurred between the command, HRC and the MTF. Therefore, the matter should be referred back to the MTF, BAMC. In the alternative, the command may have historical information regarding the request or even HRC, but certainly not the USAPDA." This paragraph again indicates that there was an error or injustice in the processing of the applicant's separation from active duty or failure to return him to active duty for DES processing. We agree with that conclusion. However, we believe that the errors or injustices are apparent and that the ABCMR should directly grant relief rather than sending the case to an MEB for unspecified determinations or findings of fact. p. The entirety of the HRC memo states "The Command Surgeons Office of HRC searched our physical and digital historical files for a potential ADME packet on the applicant. No such file was located. Therefore, HRC ADME Program Office did not receive an ADME extension request from the applicant." However, this packet was enclosed in with the applicant's application for correction of his military records. r. The applicant took all the necessary steps to apply for ADME orders. His company commander endorsed and signed off on the necessary forms to accomplish the processing of the ADME orders request. The fact that HRC does not have a copy of the packet means that there was a patent error in his case. The Army’s failure to process or accomplish his entry into the ADME program is patent error. The ABCMR should correct this error by granting him his requested relief. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board found sufficient evidence to grant partial relief. 2. The Board found that the Army committed an error when it did not properly extend the applicant on active duty and begin medical processing of the applicant’s disabilities upon recommendation by the applicant’s chain of command and medical authority. 3. The applicant faced an injustice when he was not extended on active duty and his disabilities were not evaluated in a timely manner. 4. The record contains evidence that in July 2015, the applicant’s primary care physician requested that the applicant be extended on active duty for six months to undergo MEB and the applicant’s commander submitted a personnel action recommending approval of the request. The request was not properly processed and the applicant was not retained on active duty. The applicant’s orders expired on 11 November 2015, but the applicant was released from active duty and was returned to his ARNG unit on 1 November 2015. 5. The record indicates that the applicant underwent DES processing beginning on 29 January 2018 and the PEB rendered its decision on 28 February 2018. The applicant concurred with the results and signed the PEB on 7 March 2018. Based on the PEB results, he was medically retired on 9 May 2018 and placed on the retired rolls on 10 May 2018. The Board found that this evidence indicates a DES processing period from 29 January 2018 to 7 March 2018, or 1 month and 7 days. The period from the beginning of the PEB until the applicant’s medical retirement is 3 months and 11 days. 6. The applicant has asked to be paid for 30 months of active duty for DES processing, from 1 November 2015 to 10 May 2018. The primary care physician asked that the applicant be extended on active duty for 6 months to undergo DES processing. In light of the actual amount of time the applicant underwent medical disability processing, these requests seem excessive. The requests seem excessive because the applicant did not actually serve on active duty for those 30 months and did not incur the obligations and responsibilities of active duty service during those 30 months. Furthermore, had he actually been retained on active duty, it is not reasonable to assert that it would have taken 30 months to complete DES processing. The Board notes that the authorities cited by applicant’s counsel provide that a reserve component Soldier already on active duty who is identified for DES processing should be retained on active duty, not indefinitely, but only until the DES process is finalized. The Board notes that the primary care physician who attended to the applicant asked that the applicant be extended on active duty only for 6 months to undergo DES processing. If the applicant’s processing had been completed earlier than 6 months, the applicant would have been medically retired, medically separated, or the orders extending him on active duty would have been curtailed at the earlier date. The Board therefore believes the error in this case is best remedied by constructively extending the applicant’s relevant active duty orders by the time it actually took for the applicant’s DES processing to begin and end. As previously discussed, that period of time is 3 months and 11 days. 7. Therefore, based on the available evidence, the Board found that because the applicant faced an error and injustice, his Orders 347-054, dated 13 December 2014, should be amended to reflect ADME for 3 months and 11 days, the amount of time he would have been held on active duty to complete the DES and be medically retired. These Orders expired on 11 November 2015, but the applicant was released from active duty on 1 November 2015. The Board agreed that the applicant’s orders should be extended for 3 months and 11 days from the date they expired. This would extend the applicant’s orders from 12 November 2015 to 23 February 2016. Subsequently, he should be paid all back pay, allowances, and leave accrual from 2 November 2015 until 23 February 2016 and his DD Form 214, dated 1 November 2015 should be amended to reflect that he was discharged on 23 February 2016. ? 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 was 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: a. Amending Orders 347-054, dated 13 December 2014, to reflect ADME until 23 February 2016, and b. Paying him all back pay, allowances, and leave accrual for the period 2 November 2015 to 23 February 2016. c. Amending the applicant’s DD Form 214, dated 1 November 2015, item 12b to reflect 23 February 2016 vice 1 November 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 extending his orders, paying him back pay, allowances and leave accrual for 30 months from 1 November 2015 to 9 May 2018. 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, United States Code (USC), section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. AR 40-501 (Standards of Medical Fitness) in effect at the time states a. A profile is considered permanent unless a modifier of "T" (temporary) is added as described in b below. A permanent profile may only be awarded or changed by the authority designated in paragraph 7–6. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards by chapter 3. Those Soldiers on active duty who do not meet retention standards must be referred to an MEB as per chapter 3. b. Permanent "3" or "4" profiles require the signatures of 2 profiling officers, one of which is a physician approving authority. 3. AR 40-58 (Warrior Care and Transition Program) in effect at the time states: a. RC Soldiers (Component 2 and 3 not in AGR status) must meet all of the following: (1) The Soldier’s medical condition(s) incurred or aggravated in the LOD during an active duty status (contingency or non-contingency) may qualify for evaluation, treatment, and/or disability evaluation processing while in an active duty status; and, b. The Soldier’s condition(s) require(s) definitive care. Definitive care is defined as a specific treatment or a sequence of treatments lasting 30 days or more, as determined and appropriately documented by military medical authority. Treatment is expected either to return the Soldier to duty or reach Medical Retention Determination Point and begin the IDES process. This treatment plan will require a major time commitment from the Soldier (for example, three or more medical appointments per week). c. Soldiers who do not meet the specific eligibility criteria stated will remain in their units and utilize the standard health care system and access-to-care standards. Reserve Component Soldiers on active duty orders specifying a period of more than 30 days will, with their consent, be kept on active duty for disability evaluation until final disposition by the Physical DES (PDES) process. Soldiers in the PDES process will not be automatically assigned or attached to the WTU; they must meet the entry criteria stated for assignment or attachment into the WTU. 4. Title 37 USC, section 204 states a member of the National Guard, who is participating in full-time training, provided by law is entitled to the basic pay of the pay grade to which assigned, in accordance with their years of service computed under Title 37, USC, section 205. 5. Title 10, USC, section 701 states a member of an Armed Force is entitled to leave at a rate of 2.5 calendar days of each month of active service. A member of the ARNG conducting full-time training for a period more than 29 days is considered active service for this section. 6. Warrior Transition Unit Consolidated (2009) states: a. Paragraph 2-10 RC Soldiers eligible for ADME if they are in a duty status during any period of active duty. Soldier must have incurred or aggravated an in the line of duty service-connected injury while in an individual duty for training or non-mobilization active duty status and that medical care will extend beyond 30 days. A Soldier must be found by military medical authority unable to perform his or her MOS within the confines of a medical profile. A DA Form 3349 will be used to document this determination, and the Soldier must be medically approved by the ADME medical review board to enter the ADME program. b. Paragraph 2-11 RC Not Eligible for ADME Orders when no determination has been made for a LOD investigation or a medical treatment plan will not extend beyond 30 days. 7. Department of Defense Financial Management Regulation section 010201C states creditable service periods for basic pay include active service in the National Guard. 8. Memorandum, Under Secretary of Defense, July 30, 2018, Incorporating Change 2, September 19, 2019, SUBJECT: Directive-Type Memorandum (DTM)-18-004 – “Revised Timeliness Goals for the Integrated Disability Evaluation System (IDES).” This DTM provides a 180-day goal for completing IDES processing. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008442 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1