IN THE CASE OF: BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150004897 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 correction of his military records to show entitlement to Concurrent Retirement and Disability Pay (CRDP). 2. The applicant states he was retired on 1 October 2008 with 19 years, 6 months, and 13 days of active duty service. He submitted a request for continuation of active duty (COAD) but withdrew it after receiving advice from the physical evaluation board (PEB) liaison officer (PEBLO). At the time he was assured he would receive both his military retirement pay and Department of Veterans Affairs (VA) compensation. However, today that is not the case. 3. The applicant provides copies of: * DD Form 214 (Certificate of Release or Discharge from Active Duty) (Member Copy 4) * a sworn statement from the applicant, notarized and dated 30 July 2013 * letter from the applicant’s legal assistance attorney, dated 30 August 2013 * a letter from the applicant addressed to the President of the United States, dated 22 May 2014 * a letter from the Director, Army Board for Correction of Military Records (ABCMR) to the applicant’s representative, dated 1 July 2014 * a letter to the applicant from the Director, ABCMR, dated 1 July 2014 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The evidence of record shows that the applicant made an application to the ABCMR in 2011, wherein he requested an opportunity to complete additional active duty service to acquire 20 years of creditable active duty service. His case was decided by the Board on 22 February 2011. a. The Board considered the following documents from the applicant: * COAD request * PEB proceedings * COAD waiver * July and September 2008 reassignment orders * DD Form 214 * calculation of financial injustice * a letter to his Member of Congress b. The Board reviewed the informal PEB findings of 6 June 2008, wherein the applicant was found to suffer from chronic neck pain, back pain, and bilateral osteoarthritis in the first metatarsophalangeal joints. The PEB concluded that his medical condition prevented satisfactory performance of duty in his grade and military occupational specialty. The PEB recommended permanent retirement rated at 30 percent disabling. The PEB noted the applicant had requested COAD under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB stated the recommended disposition applied (permanent disability retirement) if his application for continuance was denied. c. The Board concluded that the available evidence failed to show the applicant was erroneously counseled when he requested a waiver of COAD. The evidence also failed to show the applicant was improperly discharged for permanent disability and thus was unable to complete 20 years of active federal service. Accordingly, the applicant’s request to return to active duty for the purpose of completing 20 years of active federal service was denied. 3. A review of the applicant’s record shows that on 18 March 2008 he requested by memorandum COAD and stated he had between 15, but less than 20 years of active federal service. 4. Approximately 2 weeks after the PEB on 30 June 2008, the applicant consulted with a counselor and concurred with the PEB findings and recommendation. On the same day, he requested by memorandum a waiver of COAD. He acknowledged he had been advised by the PEBLO, but wanted to waive COAD. 5. On 1 October 2008, the applicant was honorably retired as a staff sergeant, pay grade E-6. He had completed a total of 19 years, 6 months, and 13 days of creditable active duty service. At the time he was 53 years of age. 6. The Board considered the applicant’s contention that he had been erroneously counseled concerning his COAD request. However, the Board found no evidence showing he had been improperly counseled. The available evidence did show that the applicant acknowledged he had been advised of his rights and wanted to waive his COAD even though he had requested COAD in March 2008 that had yet to be approved by Department of the Army. The PEB even acknowledged a COAD request was pending review. Subsequent to signing his COAD waiver, he was medically retired. The Board found no evidence of error or injustice and denied the applicant’s request. 7. In a sworn and notarized statement dated 30 July 2013, as provided by the applicant, he states he retired from the Army with a 30 percent disability rating with 19 years, 6 months, and 13 days of active duty service in 2008. He contends that no one told him at the time about the CRDP that began in 2004. Furthermore, he states that he had an 80 percent disability rating from the VA that would have qualified him for CRDP. He also states that he received the results of the PEB from the PEBLO in Landstuhl, Federal Republic of Germany, who advised him to concur with the 30 percent rating and to withdraw his COAD request. 8. In a letter to this Board dated 30 August 2013, as provided by the applicant, his legal assistance attorney states essentially the same as what the applicant said in his sworn statement. 9. In a letter to the President of the United States, dated 22 May 2014, provided by the applicant and received at the Department of the Army, he requested compassion and assistance. He restated his position that he had not been counseled by government representatives concerning the CRDP and improperly counseled concerning the COAD. He understood that once his COAD was approved, he would return to active duty to complete 20 years of active federal service. The PEBLO advised him that there was no financial difference in retired pay if he retired before completing 20 years of active federal service with a 30 percent disability rating. He even sought counseling from the Army Finance Office. He signed the COAD waiver memorandum and was retired. He received his retired pay until his VA financial compensation began and then his Army retired pay was offset by his VA pay. As he was rated 80 percent disabled by the VA, he now receives no Army retired pay. The loss of his Army retired pay has caused him financial problems and an incredible amount of personal stress. He has a family to support, suffers from pain daily and works full-time to provide for them. He is willing to return to active duty service so he can complete 20 years of active federal service so he can receive both his retired pay and VA compensation. 10. Public Law 108-136, the National Defense Authorization Act for Fiscal Year 2004, authorized a provision to restore the retired pay currently deducted from retiree’s pay account due to receipt of VA disability compensation. CRDP provides for concurrent receipt of both military retirement benefits and VA disability compensation. This was previously forbidden by law. Qualifications for concurrent receipt require the individual to be a military retiree with 20 or more years of service and have a service-connected VA disability rating of 50% or higher. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected to show entitlement to Concurrent Retirement and Disability Pay (CRDP). 2. The available evidence shows the applicant completed a total of 19 years, 6 months, and 13 days of creditable active duty service and was retired due to a physical disability rated at 30 percent disabling. 3. The applicant argued that he was improperly advised by the PEBLO to concur with the PEB recommendation and to withdraw his COAD request. Unfortunately, the applicant has not provided any documentary evidence to corroborate his contention. 4. The applicant contends that he was rated by the VA at 80 percent and would have qualified for CRDP had he continued on active duty for another 5 1/2 months. Unfortunately, no evidence of his VA disability rating was made available to the Board, either in 2011, or as supporting documentation with this case. Accordingly, a determination cannot be made as to whether any such VA rating would have shown that at least 50 percent was service-connected as required by law. 5. In view of the above, the applicant’s request should be denied. The available documentation fails to show any error or injustice. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X____________ 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. ABCMR Record of Proceedings (cont) AR20070016793 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004897 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1