IN THE CASE OF: BOARD DATE: 3 August 2020 DOCKET NUMBER: AR20180005101 APPLICANT REQUESTS: correction of his records to show he completed 20 years of active federal service (AFS) with entitlement to longevity retired pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Physical Disability Information Report * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings * Orders * Excerpt of Army Regulation 635-40 * Letter from Dr. T FACTS: 1. The applicant states, in effect, he was processed through the integrated disability evaluation system (IDES) and placed on the temporary disability retirement list (TDRL). He served 19 years, 7 months, and 16 days in the Army. He was informed he would be allowed to receive his retirement pay; however, subsequent to his separation, he learned he would not be allowed to receive longevity pay. He was never offered continued on active duty (COAD) nor was the governing regulation requirements followed. 2. The applicant’s record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) for service in the Navy from 08 November 1988 until 21 August 1992. The DD Form 214 shows the applicant had: a. Net active service this period: 3 years, 9 months and 14 days. B. Total prior active service: 0 C. Total prior inactive service: 2 months and 8 days. 3. He enlisted in the Regular Army on 22 January 2002. 3. On 23 June 2017, an informal PEB found the applicant unfit and recommended a 100 percent disability rating. The PEB also recommended the applicant be placed on TDRL with reexamination during March 2018. 4. On 30 June 2017, after being advised of the findings and recommendations of the Informal PEB and having received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, the applicant concurred with the PEB findings and recommendation. He did not request a reconsideration of his VA ratings. 5. The applicant's DA Form 5893 (Soldier's Medical Evaluation Board/Physical Evaluation Board Counseling Checklist) Section II, number 34, was initialed by the applicant and states “I have been informed of and understand the criteria and procedures for requesting Continuance on Active Duty…in the event the PEB finds me unfit. My PEB Liaison Officer (PEBLO) has provided and reviewed with me a sample COAD/COAR memorandum request and the latest COAD/COAR checklist outlining the necessary documents.” 6. A Physical Disability Information Report, generated by the U.S. Army Physical Disability Agency on 25 August 2017, lists the applicant as having 20 years 0 months and 23 days for disability retirement and basic pay. 7. On 23 November 2017, the applicant was temporarily retried due to disability. He completed 15 years, 10 months and 2 days of net active service this period with 3 years, 9 months, and 14 days of total prior active service. 8. Orders 249-0901, dated 6 September 2017, show the applicant was placed on the Retired List effective 24 November 2017. He completed 19 years, 7 months, and 16 days of service. 9. The applicant provides a memorandum from the Director of the Fort Gordon and Eisenhower Army Medical Center’s IDES stating, in part, his concern the applicant did not receive sufficient review for method of separation. He based his belief on a failure of the PEBLO to counsel the applicant regarding the possibility of COAD and a failure of procedures outlined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-29. 10. In processing this case, an advisory opinion was received from Legal Advisor, U.S. Army Physical Disability Agency, dated 1 April 2020, which states: a. The applicant concurred with the findings of his PEB findings on 23 June 2017. At the time of his placement on TDRL, the applicant had served more than 19 years. In accordance with Army Regulation 635-40, paragraph 6-3, Soldiers with between 15 and 20 years are eligible to apply of COAD in order to reach 20 years and a longevity retirement. b. The applicant postulates he was not offered a COAD and Army Regulation 635- 40, paragraph 4-29, was not followed. In support of his claim, he submitted a memorandum from the director of the Fort Gordon and Eisenhower Army Medical Center’s IDES outlining, among other things, a concern the applicant did not receive sufficient review for method of separation. He bases this belief on a failure of the PEBLO to counsel the applicant regarding the possibility of COAD and a failure of procedures outlined in Army Regulation 635-40, paragraph 4-29. These beliefs are not supported by the DA Form 5893, Section II, number 34, which was initialed by the applicant and states “I have been informed of and understand the criteria and procedures for requesting Continuance on Active Duty…in the event the PEB finds me unfit. My PEBLO has provided and reviewed with me a sample COAD/COAR memorandum request and the latest COAD/COAR checklist outlining the necessary documents.” If, in fact, the PEBLO did not believe this applicable to the applicant's situation, a “not applicable” notation would have been appropriate. In addition, paragraph 4-29 is not applicable to the applicant, as he does not meet the criteria for Secretarial review under sections a.(1)(a) or (b). c. The PEB’s findings were neither arbitrary nor capricious, and were not in violation of any statute, directive, or regulation. Due to the above, we find the applicant's request to be legally insufficient. Recommend no change to the applicant's PEB determination. 11. On 17 July 2020, in response to the advisory opinion, the applicant states there is a document which shows he served over 20 years and a COAD was not applicable; however, when he retrieved his DD Form 214, it showed less than 20 years. This shows deception and subterfuge was used in order to get him to sign said document. He was never offered a COAD. 12. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief. The Board carefully considered the applicant’s statement, the supporting documents, the PDA Advisory Opinion, and the applicant’s rebuttal and found insufficient evidence of error, inequity or injustice in the applicant’s case. The applicant’s notations and signature on the DA Form 5893 (Soldier's Medical Evaluation Board/Physical Evaluation Board Counseling Checklist), indicate that he had been counseled about his options for COAD. Furthermore, the applicant affixed his signature to his DD Form 214 attesting that he had 19 years, 7 months and 16 days of active service. The applicant signed the DD Form 214 on 12 September 2017, several weeks after the date of his Physical Disability Information Report. It is a separating Soldier’s responsibility to verify that the information on the DD Form 214 is correct and the Board found insufficient evidence that the applicant served longer than 19 years, 7 months, and 16 days or that he was not provided proper counseling regarding his options for COAD. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 4-29 states Soldiers on active duty who are found unfit with 18 but less than 20 years of active service will receive a secretarial review if the Soldier is separated with entitlement to severance pay or separated without entitlement to disability benefits. d. 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. e. 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. f. 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. g. 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. 2. 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. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005101 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1