IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150004435 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 reconsideration of his previously denied request for continuation on active duty (COAD) from 4 November 2013 (the date he was honorably released from active duty) to 6 January 2014 (the date he was retired by reason of disability). The applicant further requests the Board increase his retirement percentage due to administrative errors he incurred from the Department of Veterans Affairs (VA) during his Integrated Physical Disability Evaluation System (IDES) processing. 2. The applicant states, in effect, he was erroneously separated from active duty on 4 November 2013, while he was still undergoing disability processing. He was ultimately retired for disability on 6 January 2014. He claims he has trouble getting benefits from the VA because his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated due to completion of required service vice disability retirement. He claims he should not have been released from active duty while undergoing a medical evaluation board/physical evaluation board (MEB/PEB). The applicant further contends, in effect: a. His unqualified resignation was submitted months prior to his knowledge of the MEB/PEB and was submitted to help his, at the time, spouse with her mental conditions of being in a military relationship. b. His unit initiated an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation approximately 2 months prior to 4 November 2013, which prevented him from having adequate time to transition from the military. This caused him to sell back over 50 days accrued leave, and prevented him from completing the MEB/PEB process in a timely manner. c. The Physical Disability Agency is not in receipt of his request for COAD. While the Physical Evaluation Board Liaison Officer (PEBLO) may have a COAD it was never uploaded in his case file and therefore, would not have brought any changes to the administrative separation that he underwent. d. If he would have processed his COAD, the signing of the COAD would have had no bearing on his MEB/PEB as the process was completed by the VA and PEB on 9 September 2013, barring the method of holding off on Uniform Code of Military Justice (UCMJ) until 29 October 2013, and his reevaluation for Chronic Adjustment Disorder. e. Through his units practice of opening a 15-6 investigation during his MEB/PEB processing and taking an extraordinary amount of time (greater than 60 days), the process of his MEB/PEB was stalled nearly 3 weeks. Had the unit competed the investigation and conducted the administrative actions in a timely manner, his COAD would have never come into play as his PEB was completed pending UCMJ actions on 9 September 2013. This questionable action conducted by his chain of command prevented his ability to see out his PEB while on active duty and circumvented the regulation to allow a Soldier to continue on active duty pending an IDES claim. f. His first concern is this Board's attempt to make a timeline of events which led to his separation on 4 November 2013. The Board previously noted his request for an unqualified resignation. The request was submitted nearly 1 year prior to his knowledge of a MEB/PEB taking place. He requested a Release from Active Duty (REFRAD) on 5 November 2012; his MEB was referred on 11 February 2013. He had no idea that he would be recommended for an MEB when completing his REFRAD. Proof of this can be seen by the date the Brigade Commander signed off on his memorandum requesting resignation, original orders to separate upon his expiration term of service (ETS) were cut and when he was notified by his PEBLO of being referred to the MEB. g. He requested resignation to help facilitate the issues he was having with his ex-spouse. She was in the Exceptional Family Member Program (EFMP) and was not adapting well to living in a military relationship. He requested resignation as a last ditch effort to save his unraveling marriage – not because he wanted to quit his job. The decision was confirmed by the memorandum he signed with his PEBLO requesting his ETS take precedence over his MEB. When he was counseled by the PEBLO, she stated his MEB should be completed prior to 4 November 2013. Based on this, he signed off on the waiver of extension due to the MEB in lieu of resignation. h. After a change of command, his new commander initiated a 15-6 investigation. The investigation was initiated approximately 5 months into his MEB process and about 3 months prior to November 2013. During this time, he was unaware his MEB was going to be effected. The effects of the investigation were that his MEB was placed on hold, including his memorandum waiving his rights to see the MEB through while on active duty, pending UCMJ action. His ETS orders were adjusted and the investigation concluded with what he was told was a General Officer Memorandum of Record (GOMOR). He has attempted to confirm this but has been unable to receive a source document to support this claim. After the flagging action was lifted he had less than 1 week to transition out of the service. i. He requested more time from his unit to transition from active duty due to his MEB/PEB process being delayed, but they refused. This was extremely unfair and resulted in having to sell back leave and conduct his out-processing in less than 5 days. Because of the situation he had to sign his DA Form 199 (Informal PEB Proceedings) in Wisconsin without legal or medical professionals to advise him of his decision. He was not afforded the proper time to transition, or receive a solid transition plan for his post-traumatic stress disorder/anxiety issues for which he has been treated by military psychologists for the past 2 years. j. He does not challenge the authority which processed him out of the military, rather, he challenges the method and injustice which was created primarily by the handling of his Army Regulation 15-6 investigation and the lack of communication between his command and the MEB/PEB offices and transition point. 3. The applicant provides: * a self-authored statement * a 13-page letter from the VA * Board of Veterans' Appeals Docket Number 14-07 265A * Army Disability Rating Review Board Record of Proceedings AR20140020006 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2014000501, on 4 November 2014. 2. The applicant provides a self-authored statement. The arguments contained in the statement were not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board. 3. Having prior enlisted service, the applicant was appointed as a Regular Army commissioned officer and he executed an oath of office on 4 November 2010. The applicant was promoted to the rank of first lieutenant (1LT) on 4 May 2012. 4. His Army Military Human Resource Record (AMHRR) contains: a. A memorandum, issued by the Chief, Retention and Transition Branch, dated 11 January 2013, entitled, "REFRAD for Officers with a Remaining Mandatory Service Obligation (MSO) or Those Desiring a Reserve Appointment." The memorandum notes the separation pertaining to the applicant, effective 4 November 2013, was approved under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 3, section II, provided this action is not in contravention of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions). b. DA Form 67-9 (Officer Evaluation Report), Change of Rater evaluation for the period 12 January 2013 through 4 November 2013. Part V – Performance and Potential Evaluation (Rater) indicates unsatisfactory performance, do not promote and contains comments which note, in effect, the applicant was involved in multiple violations of his personal and professional honor, integrity, and decision making during the rating period. Due to his actions, he received a GOMOR that found his actions in contrast to the Army Values. On numerous occasions the applicant compromised his ethics and integrity, choosing lies or equivocation over truthfulness and forthrightness to try and avoid punishment or responsibility for his actions. The rater recommended the applicant not be retained in military service to the nation and his senior rater echoed the rater's evaluation of the applicant's potential. c. DD Form 2648 TEST (Preseparation Counseling Checklist for Active Component, Active Guard Reserve, Active Reserve, Full Time Support, and Reserve Program Administrator Service Members), dated 21 October 2013; however, the date the checklist was prepared is noted as 11 February 2013. d. Orders 038-0008, dated 7 February 2013, amended by Orders 239-0021, dated 27 August 2013, honorably releasing him from active duty effective 4 November 2013, at the 3-year active duty mark, by reason of completion of required active service. Effective 5 November 2013, the Secretary of the Army directed his appointment as a Reserve commissioned officer of the Army in the rank of 1LT. e. DA Form 5893 (Soldier's MEB/PEB Counseling Checklist), which shows he attended the standard MEB/PEB briefing on 11 February 2013, and that he was scheduled for an Army Career and Alumni Briefing on 11 February 2013. 5. On 27 March 2013, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the conditions below. The MEB recommended referral to the PEB. The applicant agreed with the board's findings and recommendations. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Combined/Mixed Classic Migraine and Muscle Contraction Headaches X 2. Thoracic Spine Degenerative Disc Disease X 3. Adjustment disorder X 4. Bilateral tinnitus X 5. Traumatic brain injury X 6. Cervicalgia secondary to Scheuermann's Disease X 7. Right brachial plexopathy X 8. Bilateral pes planus and bilateral plantar fasciitis X 9. Erectile dysfunction X 10. Right cubital tunnel syndrome X 11. Abnormal auditory perception X 6. On 9 April 2013, the President, U.S. Army PEB, stated the PEB found the applicant physically unfit for continued military service for combined/mixed classic migraine and muscle contraction headaches and for thorasic spine degenerative disc disease with increased kyphosis and vertebral body wedging at T 7-9. He requested the VA IDES provide a disability rating percentage (with rationale) to the PEB Administration. 7. On 14 June 2013, the applicant provided a signed statement to the PEB indicating he did not desire retention on active duty in the Army beyond his scheduled ETS date. In his statement he noted he was going through the PEB process and his ETS was 4 November 2013. He stated he had been fully advised of the rights and advantages of voluntarily remaining on active duty in the Army beyond the scheduled date of his release for the purpose of completing Physical Disability Evaluation under the provisions of chapter 61, Title 10, U.S. Code. The applicant's PEBLO noted he had been counseled on the process, his right to a PEB, and the potential benefits of remaining on active duty for the purpose of completing his evaluation by the Disability Evaluation System (emphasis added). 8. On 12 September 2013, by email, he confirmed the PEBLO received his memorandum waiving extension of his ETS. 9. On 4 November 2013, upon completing 3 years and 1 day of active service, the applicant was honorably released from active duty by reason of completion of required active service and transferred to the U.S. Army Reserve Control Group (Reinforcement). 10. On 5 November 2013, based upon his service remaining requirement, the applicant was appointed as a Reserve commissioned officer of the Army in the rank of 1LT. 11. On 15 November 2013, an informal PEB (IPEB) convened and found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to the conditions below. a. The IPEB rated his medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) Code 8100 (Combined/Mixed Classic Migraines and Muscle Contraction Headaches), at 30 percent; and VASRD Code 5237 (Thoracic Spine Degenerative Disc Disease), at 10 percent. The IPEB recommended a combined rating of 40 percent and permanent retirement. b. On 16 November 2013, the applicant was counseled and concurred with the findings and recommendations of the IPEB. At this time he also waived his right to a formal hearing of his case and indicated he did not intend to appeal the proposed VA rating. c. On 9 December 2013, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations on behalf of the Secretary of the Army. 12. On 2 December 2013, the USAPDA published Orders D336-15 ordering his retirement by reason of physical disability and he was placed on the Retired List in his retired grade of 1LT effective 6 January 2014. 13. On 28 October 2014, a staff member of the ABCMR contacted the applicant's PEBLO. According to the PEBLO, the applicant's disability processing continued because of his remaining service obligation. By email, dated 28 October 2014, the PEBLO certified that she counseled the applicant; however, he declined retention on active duty beyond his ETS (4 November 2013). The PEBLO provided a copy of the applicant's DA Form 5893 (Soldier's MEB/PEB Counseling Checklist) which indicates the applicant was counseled and understood the criteria and procedures for requesting COAD. 14. The applicant petitioned the Army Disability Rating Review Board (ADRRB) to increase his disability percentage to 100 percent as well as other contentions which are not within the purview of the ADRRB. On 3 February 2015, the ADRRB unanimously agreed that there was no new substantial evidence submitted by the applicant at the time of disposition which would have contributed to warranting a higher rating or a new rating for an unfitting condition. 15. At some point the applicant's medical condition was reevaluated by the VA. On 21 March 2015, the VA awarded him an overall combined rating of 100 percent service-connected disability. 16. The applicant petitioned the Board of Veterans' Appeals for entitlement to a rate of payment in excess of 40 percent of the maximum amount payable for education assistance under the provisions of Chapter 33, U.S. Code (Post 9/11 GI Bill). In support of his claim, the applicant contended he was erroneously released from active duty due to an administrative error on the part of the Army. He claimed his discharge should have been due to a service-connected disability, and therefore, he was eligible for 100 percent of the maximum amount payable for education assistance benefits. On 11 September 2015, a Veterans Law Judge, Board of Veterans' Appeals, denied his claim. 17. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 office, grade, rank, or rating. It states, in part: a. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands their rights. The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or he may request an extension. c. Paragraph 6-2 states the primary objective of the COAD program is to conserve manpower by effective use of needed skills or experience. A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation. Continuation in a military status is generally subject to the Soldier’s consent. However, the Secretary of the Army or their designee may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience. d. Paragraph 6-4 states, normally, COAD will be for any period of time up to the last day of the month in which the Soldier attains 20 years of active Federal service for purposes of qualifying for length of service retirement under Title 10, U.S. Code, section 3911 or 3914. e. Paragraph 6-8 states before the Soldier completes an application for COAD, the PEBLO will counsel the Soldier according to appendix C of this regulation. The PEBLO will specifically inform the Soldier of the following: (1) Before a COAD application is forwarded to the approval authority, the PEB will process the case to completion, to include the following: convening a formal hearing, if requested; determining a percentage rating; and recommending a disposition that will apply if application for continuation is disapproved. The PEBLO will counsel the Soldier on the eligibility criteria for requesting continuation and that if continuation is approved, the Soldier must be referred to the PDES before expiration of the continuation period unless Soldier waives in writing the final referral, that the final PDES evaluation could result in a fit finding, and that if the request is disapproved, the approval authority will notify the military treatment facility of the USAPDA. f. Paragraph 6-10 states the fact that a Soldier has or has not applied for COAD will not influence the determination of fitness or percentage of the disability rating. The Commander, U.S. Army Human Resources Command is the approval authority for an Regular Army officer requesting COAD. 18. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It states: a. The IDES is the joint Department of Defense (DOD) -VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DODI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA Compensation and Pension standards. Collectively, the examinations will be sufficient to assess the member's referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department Board for Correction of Military Records (BCMR) if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 19. Army Regulation 15-185 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. Notwithstanding the applicant's contentions, the evidence of record clearly shows he was not erroneously separated from active duty while undergoing disability processing on 4 November 2013. The applicant was fully advised of the rights and advantages of voluntarily remaining on active duty in the U.S. Army beyond the scheduled date of his release, for the purpose of completing a physical disability evaluation under the provisions of chapter 61, Title 10, U.S. Code, and he declined to do so. 2. The fact that the applicant tendered his unqualified resignation purportedly due to his former spouse's mental condition months prior to entering into the IDES process is irrelevant. The applicant had ample time and communication with his PEBLO (who openly questioned his decision to REFRAD prior to completing his disability processing) to request to remain on active duty while seeing the physical disability evaluation process to fruition. 3. The applicant's record contains a change of rater evaluation for much of the period in question in which his rater noted the applicant's unsatisfactory performance, provided a recommendation of "do not promote," and comments that note, in effect, the applicant's involvement in multiple violations of his personal and professional honor, integrity, and decision making during the rating period. Due to his actions, he received a GOMOR that found his actions in contrast to the Army Values. On numerous occasions the applicant compromised his ethics and integrity, choosing lies or equivocation over truthfulness and forthrightness to try and avoid punishment or responsibility for his actions. The rater recommended the applicant not be retained in military service to the nation and his senior rater echoed the rater's evaluation of the applicant's potential. 4. The applicant states he does not challenge the authority that processed him out of the Army; rather, he challenges the method and injustice which was created by the handling of the 15-6 investigation and the lack of communication between his command and the MEB/PEB offices and transition point. However, despite the applicant's dissatisfaction, the evidence of record appears to indicate an investigation was warranted. His dissatisfaction with his separation processing appears to be a byproduct of his own doing. 5. On 3 February 2015, the ADRRB unanimously agreed that there was no new substantial evidence submitted by the applicant at the time of disposition which would have contributed to warranting a higher rating or a new rating for an unfitting condition. The applicant appears to believe that since the VA subsequently awarded him an overall combined rating of 100 percent service-connected disability, the Army should have or should now, in effect, do the same. 6. The applicant's case was processed under the IDES. This means he underwent an examination by the VA and upon completion the VA proposed a disability rating for the unfitting conditions to the military department and a proposed disability rating for other service-connected disabling conditions to the member, if applicable. 7. After a thorough review of the medical records he provided, the ADRRB determined that he had not provided any evidence of error which would require a change in his military records. Subsequent ratings by the VA for conditions that the MEB and/or the PEB did not find unfitting at the time of separation from the military are not indicative of an Army error. 8. Only conditions found to be unfitting before the Soldier is separated from the military can be found to be compensable by the military. The fact that the applicant's overall combined rating was increased by the VA after leaving the Army does not negate the combined findings of the VA during his IDES processing. 9. Ultimately, his PEB findings were supported by a preponderance of the evidence, were fully reviewed and approved by the applicant, were not arbitrary or capricious, and were not in violation of any statute, directive, regulation, or written policy. 10. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Notwithstanding the applicant's dissatisfaction, in the absence of substantial evidence to the contrary, the presumption of administrative regularity must be applied. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140004501, dated 4 November 2014. _____________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) AR20150004435 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004435 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1