IN THE CASE OF: BOARD DATE: 27 March 2020 DOCKET NUMBER: AR20180007924 APPLICANT REQUESTS: 1. in effect correction to her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 May 2017 to show: * her narrative reason for separation as sufficient service for retirement instead of "disability, temporary (enhanced)" * 60 days of paid annual leave converted to terminal leave so she can complete 20 years of active federal service 2. in effect financial compensation for 37 days as founded by the Department of the Army Inspector General (DAIG) Report identified as IG Record F7-04XX. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Counsel Legal Brief * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) dated 14 November 2016 * Department of Veterans Affairs letter dated 25 January 2017 * DA Form 199 dated 2 February 2017 * Physical Disability Information Report dated 3 March 2017 * Orders 069-0613 dated 10 March 2017 * DD Form 214 for the period ending 30 May 2017 * DA Form 5892 (Physical Evaluation Board (PEB) Liaison Officer (PEBLO) Estimated Disability Compensation Worksheet) * Leave and Earnings Statement (LES) for 31 May 2017 * Enlisted Record Brief * Information Sheet – Applying for Combat Related Special Compensation (CRSC) * Application for CRSC dated 2 August 2017 FACTS: 1. The applicant states through counsel she was erroneously discharged from the U.S. Army 60 days short of completing 20 years of active federal service. She requests a record correction to show she completed 20 years of active federal service by converting her 60 days of paid annual leave to terminal leave. She agrees to pay back any lost funds to the military. Counsel states her appeal is based on three errors: * the underlying basis of her separation is procedurally defective * the discharge was unfair * the loss of retirement (retired pay) is inequitable a. Counsel states his client’s application is properly submitted to the Army Board for Correction of Military Records (ABCMR) within its 3 year statute authority under the provisions of Army Regulation 15-185 (ABCMR). The applicant suffered an injustice or error when she was not allowed to retire with a "full military retirement." Upon correction of her DD Form 214, she requests back payment of retired pay from her date of separation. b. The applicant was discharged on 30 May 2017. At the time of her discharge, she was being evaluated by a medical evaluation board (MEB). However, her DD Form 214 shows she was honorably discharged. She was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 with her narrative reason for separation shown as “Disability, Temporary (Enhanced).” c. The applicant was assisted by a PEBLO at Fort Campbell, Kentucky. The PEBLO assured her she had 20 years and 4 months of "total service." She questioned the PEBLO’s calculations because she also had served in the Army National Guard and had reserve time. The PEBLO assured her she had accounted for all her service time. However, the PEBLO was wrong because she did not account for all of the applicant’s service time. d. She also had problems with her unit because her unit leadership would not sign her request for leave. The unit finance manager at the Warrior Transition Unit (WTU) convinced her it would be best if she sold her leave and accepted payment for her unused leave. She didn’t think it was a good idea because she remembered she had sold some of her annual leave back to the U.S. Army when she was a private. She does not remember the exact date. The finance manager looked at her finance records assuring her she had not sold annual leave. At the time she valued her payout at over $10,000, if she sold her annual leave. To her, this sounded like a good idea because she thought she would retire with 20 years of active federal service and receive her "standard retirement." Counsel asserts if the applicant knew she did not have 20 years of active federal service, she would not have sold her annual leave. e. There is a procedural error in the applicant’s record because she should not have been separated under the provisions of Army Regulation 635-40. She should have been allowed to complete 20 years of active federal service. As you are aware, Army Regulation 635-40 is the authority for separating Soldiers with a disability. A requirement of that regulation calls for "effective assistance of both legal counsel and effective assistance for separation when a Soldier has a P3/P4 [permanent] profile." Counsel states the PEBLO provided ineffective assistance to the applicant. f. Counsel states, "Although [the applicant] was appropriately separated under the AR [Army Regulation], she was not properly informed of the consequences of this retirement. She was on the verge of completing her 20 years, but was wrongly informed that she had 20 years and 4 months of service." This is false information from which she based her decision to separate and sell back 60 days of annual leave. If she hadn’t sold her annual leave, she would have reached 20 years of active federal service. Her reliance on the PEBLO cost the applicant her military retirement. Counsel claims it was the inappropriate counseling that affected her decision. g. The substantive error in this case is the applicant should have been allowed to continue her military service to attain 20 years of active federal service and not processed through the disability evaluation system (DES). He acknowledges the applicant received due process through the MEB under the provisions of the DES. However, he argues she was not able to make an informed decision due to errors by the PEBLO. She filed a Department of the Army Inspector General (DAIG) complaint reporting a person gave her false information. From her personal statement, "… I received a telephone call from the Fort Campbell IG office stating that the investigation was closed and although she was wrong there was nothing they could do." He concludes his statement by saying justice will be served when the applicant’s record is corrected to show she’ll receive her proper benefits and recognition. 2. The applicant states in her personal statement that prior to February 2011 she was a stellar noncommissioned officer (NCO) with a great career ahead of her. She believed in the Army and everything it stood for. She was an advocate for the U.S. Army Sexual Harassment/Assault Response and Prevention (SHARP) program and a sexual assault response coordinator (SARC). She was the "go to" person for almost everything. a. Her life changed in April 2011 when she was raped and beaten by a junior NCO. Her unit was redeploying from Afghanistan and she agreed to remain and leave with the trail party back to the United States. Her assailant was in the trail party too. She thought they were friends because she had helped him when he was accused of sexually harassing junior enlisted Soldiers. Angrily he assaulted her beating her over an extended period of time all the while expressing his own frustration with his personal life from childhood into adulthood. When he raped her she fought back but that only lead to more beatings. b. On 10 June 2015, her psychiatrist determined she could no longer care for herself. She had been hospitalized in behavioral health institutions twice during a 3 year period. She states her doctor thought she was on the verge of a nervous breakdown, though he felt she could complete 20 years of active federal service. Her husband was reassigned to her location. She states her doctor opined processing through the DES would only further deteriorate her mental health and her sense of betrayal from the U.S. Army. Her Soldiers supported her saying she was able to fulfill her duties and responsibilities as an NCO. However, she was processed into the WTU and her medical boarding process was started. At the time she had 19 years of active service. c. She remembers her chain of command assuring her she would remain in the service so she could retire at 20 years of active federal service. Her experiences at the WTU were not good. Her PEBLO informed her she had 20 years and 4 months of service. She states she asked her to ensure she had calculated her service in the U.S. Army National Guard (ARNG) and Reserve Component into her total service. Her PEBLO gave her assurances she had correctly calculated her service. She also had problems with WTU administrators who were processing her leave request. The unit finance manager convinced her to cash out 60 days of annual leave. She informed the unit finance manager she had already cashed out annual leave and she didn’t think she could cash out a second time in her military career. A person looked into her finance record and did not find a record showing she had previously cashed out annual leave, so she agreed to it. She was told the estimated value of cashing out her leave was $10,000.00. d. Her experiences in the WTU further aggravated her depression and anxiety. During her final out-processing she was told she had 19 years and 10 months of service, not the 20 years and 4 months she thought she had based on her PEBLO counseling. She did not receive the $10,000.00 she was told she would receive when she cashed out her annual leave. As of the date of her application to the Board, she states she has not received a retirement check from the U.S. Army. She also filed an IG complaint. She eventually received a telephone call saying she received incorrect information but there was nothing the U.S. Army could do to right their wrong. She feels she was tricked out of her rightful retirement. 3. On 10 July 1996, the applicant enlisted in the Army National Guard of the United States (ARNGUS) and the ARNG of the State of North Carolina (NCARNG). At the time she agreed to be a member of the ARNGUS for a period of 6 years. 4. On 29 October 1996 she entered active duty for training to complete both her initial and advanced individual training. After completing her training she was honorably released from active duty on 1 October 1997. She was issued a DD Form 214 showing in Block 12c (Record of Service – Net Active Service This Period) the entry "00 [years] 11 [months] 01 [days]." Her 1997 DD Form 214 does not show prior active service or prior inactive service. 5. On 30 November 1997 she was honorably discharged from the ARNGUS to enlist in the Regular Army. To document her NCARNG service, the State prepared a NGB Form 22 (Report of Separation and Record of Service) showing in Block 10a (Record of Service – Net Service this Period) the entry 1 year, 4 months and 21 days. Her NBG Form 22 shows she had no prior Reserve component service. Her total service for pay was 1 year, 4 months and 21 days. Further it records her period of active duty for training from 29 October 1996 to 1 October 1997. 6. On 1 December 1997 she enlisted in the Regular Army for a period of 4 years. She also agreed to attend training for military occupational specialty (MOS) 91B (Medical Specialist). 7. On 24 January 2002 she reenlisted in the Regular Army for 2 years. This was her first reenlistment in the Regular Army for her current period of service. 8. On 8 August 2003 she reenlisted in the Regular Army for a period of 3 years. This was her second reenlistment in the Regular Army for her current period of service. 9. On 18 October 2004, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky issued Orders 292-0026 discharging the applicant from the Regular Army. These orders show she was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-8 (Parenthood). She was also authorized half separation pay in accordance with Title 10, U.S. Code, section 1174. This order was amended on 1 December 2004 and it amended her date of separation to 22 December 2004. 10. Accordingly, she was honorably discharged on 22 December 2004 and issued a DD Form 214. This form shows the following pertinent entries: * Block 12c (Net Active Service This Period) – 7 years and 22 days * Block 12d (Total Prior Active Service) – 11 months and 3 days * Block 12e (Total Prior Inactive Service) – 5 months and 18 days * Block 18 (Remarks) – no entry showing payment of annual leave * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-8 * Block 28 (Narrative Reason for Separation) – parenthood 11. After a break in service she enlisted in the Regular Army in pay grade E-5 for a 3 year period of service on 25 May 2006. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) does not record her prior active or inactive service. She extended her enlistment. 12. She served in Afghanistan from 20 June 2010 to 12 March 2011. 13. On 1 December 2012 she was promoted to the rank and pay grade of sergeant first class/E-7. 14. The applicant’s medical evaluation board proceedings and its associated documents are not filed in her electronic personnel record. However, her record contains evidence she was processed through the Integrated Disability Evaluation System (IDES). A DA Form 199, dated 14 November 2016, records her informal PEB proceedings showing the board found her physically unfit and recommended a rating of 50 percent. The board determined she should be placed on the temporary disability retired list (TDRL) because one or more of her unfitting medical conditions was not stable. a. The diagnoses shown on her DA Form 199 include post-traumatic stress disorder (PTSD) and major depressive disorder which was recurrent and moderate. The narrative shows the onset was in June 2011 due to life circumstances and combat stressors. She had served in Afghanistan from June 2010 to March 2011. Her behavioral health examiner attributes her conditions to a sexual assault and combat stressors because she was a combat medic and subjected to indirect fire. She was unable to perform certain activities of her MOS including supervising para-professional medical service activities in large fixed and mobile treatment facilities due to her depressive mood, anxiety and chronic sleep impairment. b. The PEB found her fit for duty for 27 medical conditions which are listed separately on her DD Form 199. c. Her disability disposition is based on a disease or injury incurred in the line of duty in combat with the enemy and as a direct result of armed conflict. Her disability was found to be combat related under the provisions of Title 26, U.S. Code, section 104 or Title 10, U.S. Code, section 10216. d. Instructions state she would be retained on the TDRL for a period not to exceed 5 years while her unfitting medical conditions were unstable. She would undergo further medical evaluations during the 5-year TDRL period. e. The VA identified in its 31 October 2016 memorandum the specific Veteran Affairs Schedule for Rating Disabilities (VASRD) codes describing the applicant’s conditions. It states, "The PEB determined the disposition recommendation based on the proposed DVA disability rating(s) and in accord with applicable statues and regulations." f. On 4 January 2017 it shows the applicant was counselled by a PEBLO. g. On the same date as her PEBLO counseling, she concurred and waived a formal hearing of her case. However, she did request the VA reconsider her disability ratings and submitted a written request. 15. Concurrent with processing through the IDES, she was offered preseparation counseling which was documented on DD Form 2648 (Preseparation Counseling Checklist for Active Component… Service Members). Her preparation for separation could have included VA benefits briefings, Department of Labor Transition Assistance Program Employment Workshop(s), a VA Disabled Transition Assistance Program briefing, and an introduction to other services and programs available to Veterans upon separation. Upon review of her DD Form 2648 she declined assistance from numerous sources. 16. As she requested, the VA reconsidered her unfitting medical condition of PTSD and major depressive disorder increasing her percentage of disability to 70 percent. A new informal PEB convened on 2 February 2017 and it also found these two medical conditions remained unfitting and assigned her a new rating of 70 percent concurrent with the VA reexamination. A new DA Form 199 was prepared showing her VA reexamination occurred with the VA documenting its reconsideration and administrative correction on 25 January 2017. This DA Form 199 contains the same instructions as noted on the November 2016 DA Form 199 including recommending placement on the TDRL with an additional instruction stating her previous DA Form 199 (November 2016 informal PEB) was superseded and replaced by the 2 February 2017 document. 17. On 7 February 2017 her PEBLO informed her of the 2 February 2017 informal PEB findings and recommendation. She signed the new DA Form 199 indicating she was advised of the findings and recommendations of the informal PEB and that she had received a full explanation including information concerning her legal rights. 18. On 3 March 2017 a Physical Disability Information Report was completed showing her Title 10, U.S. Code, section 1405 service consisted of 20 years and 3 days which was her years of service for her disability retirement. Her basic pay calculation was 20 years, 5 months and 21 days. Her authorized retirement grade was E-7 under the provisions of Title 10, U.C. Code, section 1372 and the statute authorizing her retirement was Title 10, U.S. Code, section 1202. 19. On 9 March 2017 a Government civilian employee completed the applicant’s computation for retirement automated worksheet. a. This form shows her enlisted service as follows: * from 10 June to 28 October 1996, inactive service totaling 3 months and 19 days * from 29 October 1996 to 1 October 1997, active service totaling 11 months and 3 days (See DD Form 214 for the period ending 1 October 1997.) * from 2 October to 30 November 1997, inactive service totaling 1 month and 29 days * from 1 December 1997 to 22 December 2004, active service totaling 7 years and 22 days (See DD Form 214 for the period ending 22 December 2004.) * from 13 July 2005 to 24 May 2006, inactive service showing a total of 19 retirement points (15 membership point plus 4 inactive duty training points) * from 1 August to 3 December 2005, active service totaling 4 months and 3 days * from 25 May 2006 to 30 May 2017, active service totaling 11 months and 6 days (See DD Form 214 for the period ending 30 May 2017.) b. Her service converted to months and day shows: * Item 10 (Total Active Service) – 19 years, 4 months and 4 days * Item 11 (Total Inactive Service) – 11 months and 27 days * Item 15 (Basic Pay Entry Date) – 31 January 1997 (adjustment) * Item 22 (Total Service for Basic Pay Purposes) – 20 years, 4 months and 1 day * Item 23 (Total Service for Percentage Purposes – Title 10, U.S. Code, section 1405) – 19 years, 4 months and 23 days including both her active service and 19 Reserve component retirement points 20. On 10 March 2017, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky published Orders 069-0613 releasing the applicant from her assignment and duty due to physical disability incurred while entitled to basic pay and placing her on the TDRL (U.S. Army Reserve Control Group (Retired)). Her effective date of retirement was 30 May 2017 with placement on the TDRL on 31 May 2017. The statute authorizing her retirement was Title 10, U.S. Code, section 1202. Her percentage of disability is shown as 70 percent. It further shows: * Basic Pay – 20 years, 4 months and 1 day * Disability Retirement – 19 years, 4 months and 4 days * Title 10, U.S. Code, section 1405 service – 19 years, 4 months and 23 days * Under the provisions of Title 26, U.S. Code, section 104, her disability resulted from a combat injury * Date initially entered military service – 10 July 1996 * Authority – Army Regulation 635-40 21. On 5 May 2017 along with a counselor and her unit commander she completed DD Form 2958 (Service Member Career Readiness Standards/Individual Transition Plan Checklist). She indicated and her leadership authenticated the fact she had prepared a Department of Defense (DoD) standardized 12-month post-separation budget and completed other mandatory training. She authenticated on a separate counseling statement that she had been counseled concerning her separation date due to medical separation and its effects on both her military retired pay and VA benefits. She elected a separation date of 30 May 2017. 22. In compliance with Orders 069-0613 the applicant was honorably retired on 30 May 2017. She received a DD Form 214 documenting her active service from the date she entered on 25 May 2006 to her retired date. Her total active service for this period of service is shown as 11 years and 6 days. Her DD Form 214 also contains the following pertinent information: * Block 23 (Type of Separation) – retirement * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-40, chapter 4 * Block 28 (Narrative Reason for Separation) – disability, temporary (enhanced) 23. On 2 August 2017 she completed and signed an application for CRSC and forwarded it to the U.S. Army Human Resource Command for processing. She provided the required supporting documents which included a finance statement showing she paid a VA waiver in the amount of $3,108.00 on 2 December 2012. 24. On 28 March 2018 the VA prepared for her a new rating decision. The VA had reviewed her recent medical examination of 20 March 2018. Her 70 percent disabling rating was continued from 20 June 2017 for PTSD with unspecified depressive disorder (claimed as major depressive disorder). Further she met the basic eligibility criteria for Dependents’ Education Assistance. The disabling rating of 70 percent was assigned based on the following evidentiary criteria: * panic attacks (weekly) * difficulty is adapting to stressful circumstances * occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood * suspiciousness * depressed mood * suicidal ideation * anxiety * difficulty in establishing and maintaining effective work and social relationships * impaired impulse control * chronic sleep impairment 25. The VA also considered other physical conditions which warranted ratings based on additional VASRD codes. Her combined disabling rating increased to 100 percent including her PTSD and various physical conditions. 26. On 29 June 2018, the CRSC office within HRC approved her claim for CRSC. There were two VASRD codes verified as combat-related: PTSD with unspecified depressive disorder and tinnitus. Her total combined percentage is shown as 70 percent combat related. The effective date of her CRSC is shown as June 2017, her first month on the retired list (TDRL). There were numerous physical conditions that were deemed not combat related. The letter states being in a combat zone is insufficient evidence to award CRSC. The disability or injury must be linked to a combat-related event. 27. On 1 November 2019, the applicant underwent an informal PEB as required by law. This PEB, documented on a DA Form 199, also found her physically unfit and recommended her rating remain at 70 percent and placement on the permanent disability retired list (PDRL). Her disability remained PTSD with major depressive disorder. She had numerous physical conditions that were not unfitting. 28. On 6 November 2019 the applicant was counseled and she concurred with the findings of the informal PEB and waived a formal hearing of her case. Accordingly, she signed her new DA Form 199 on 19 November 2019. 29. On 2 December 2019 a Government representative acting on behalf of the Secretary of the Army authenticated her DA Form 199. Accordingly, the U.S. Army Physical Disability Agency published Order D336-26. This order removed her from the TDRL placing her on the PDRL effective 2 December 2019. Her percentage of disability remained 70 percent. Copies of this order were sent to the applicant at her Tennessee address and to the Defense Finance Accounting Services (DFAS) offices at Indianapolis, Indiana. 30. In support of her application she provided evidence to include duplicate documents that were also filed in her electronic personnel record, which were previously annotated in this record of proceedings. Duplicate evidence will not be addressed in this paragraph: a. A DA Form 5892 showing it is completed for Soldiers who are entitled to disability compensation. A PEBLO is required to complete the form during the counseling process. Section III (Estimated Compensation) contains the following estimates: * Block 2 (Years of Service) – 20 years and 2 months * Block 3 (Monthly Basic Pay) – $4,565.60 * Block 4 (Estimated Retired Pay Base) – $3,880.76 * Block 5 (Disability Percentage) – 70 percent * Block 6 (Disposition) – TDRL * Block 7 (Estimated Retired Pay (TDRL): Retired pay is the higher of formula "a" or "b") * Block 7a (Years of Service Computation) – estimated retired pay $1,956.54 * Block 7b (Disability Rating Percentage Compensation) – estimated TDRL pay $2,716.53 b. An LES for the pay period ending 31 May 2017 showing her entitlements minus deductions resulted in no pay due for this specific month. She had a debt payment of $2,373.65 and a second debt payment of $2,567.90. Concerning her leave balances, she had a balance of 48 days of annual leave and she was paid for 49.5 days of annual leave during her military career. c. Her Enlisted Record Brief, dated 4 October 2004, recording pertinent data pertaining to her military career such as military education, assignments, awards, overseas tours, service data, and personal data/family data. This brief shows she completed 80 hours of SHARP training. Her basic active service date (BASD) or date initially entered active duty is shown as 28 December 1996. d. A VA proposed decision dated 25 January 2017 adjusting her PTSD (also claimed as major depressive disorder) VASRD disabling percentage from 50 percent to 70 percent. Additionally, the VA proposed increasing her total combined rating for service-connected disabilities to 100 percent. VA stated it provided this new proposed rating to her PEB. 31. In the processing of this application the staff of the Board obtained the applicant’s Inspector General Report identified as IG Record F7-04XX. On 9 June 2017 the applicant initiated a compliant with the IG at Fort Campbell, Kentucky concerning compensation for her lost annual leave. She stated she had lost 47.5 days of annual leave. She asserted she was lied to and convinced she could sell back annual leave after meeting with finance staff of the Warrior Transition Unit. The results of the investigation confirmed the applicant received incorrect information from Department of the Army Civilians during the performance of their duties at the Warrior Transition Unit. However, the applicant was aware that by law she could only sell back 60 days of annual leave throughout her military career and she had previously sold 49.5 days of leave as shown on her May 2017 LES. By law she could only sell back 10.5 days of annual leave upon her separation or discharge. DFAS confirmed she received pay for 10.5 days of annual leave during her final out-processing. Per DFAS, the report shows the applicant lost 37 days of annual leave and her only recourse for payment was to apply to this Board. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, her record and length of service, the nature of her medical conditions, her processing through the disability evaluation system and temporary disability retirement, and the change in disability percentage and retirement for permanent disability. The Board considered her statement and the Inspector General report regarding leave previously sold, the amount of leave she was paid for and the leave balance lost upon separation. The Board found the applicant was paid for the maximum amount of leave she elected to sell back. The Board considered the statements regarding the counselling received as she was out- processed, but found no evidence that her disability separation was improper or that she was denied due process. Based on a preponderance of evidence, the Board determined the narrative reason for separation, the leave payments she received and the amount of leave lost were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by medical evaluation boards (MEB) to determine which medical conditions will be referred to a physical evaluation board (PEB). Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB will make the determination of fitness or unfitness. 2. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Chapter 4 provides guidance on referring Soldiers for evaluation by a MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. a. Public Law 110-181 defines the term, physical DES, in part, as a system or process of the DOD for evaluating the nature of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments. It is composed of MEBs, PEBs, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. b. The objectives of the DES are to maintain an effective and fit military organization with maximum use of available manpower. Secondly, it is to provide for eligible Soldiers whose military service is terminated because of disability incurred in the line of duty. Finally, it promptly provides disability processing while ensuring the rights and interest of the Government and Soldier are protected. c. The PEBLO must inform the Soldier about the DES process, their right to a PEB, and the potential benefits of remaining in an active duty status. Paragraph 4-4 (Waiver of DES), subparagraph 4-4b(2) states, "Soldiers who are pending permanent or temporary disability retirement and who are eligible for a length of service retirement at the time of their disability evaluation (emphasis added) may elect to be retired for disability or for length of service. However, when retirement for length of service is elected, the Soldier’s retirement date must occur no later than the date the Soldier would have been retired for disability." d. A MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501 (Standards of Medical Fitness). The MEB will be composed of two or more physician members. One of the physician’s will prepare the narrative summary. The senior medical officer will serve as the board chairman and will have detailed knowledge of regulations pertaining to standards of medical fitness and disability separation processing. No individual will serve as both the MEB appellate authority and PEB approval authority. e. A PEB will determine a Soldier’s fitness for retention, separation or retirement for disability under the provisions of 10 U.S. Code chapter 61 or separation from duty without entitlements to disability benefits authorized under the same paragraph. It states, "The PEB also makes certain administrative determinations that may have benefit implications under other provisions of law." f. A Soldier will be considered unfit when the preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably perform the duties of their office, grade, rank, or rating (hereafter call duties) to include duties during a remaining period of Reserve obligation. g. Unless reserved for higher authority, U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues the disposition instructions to the Transition Center for Soldiers separated or retired for physical disability from an active duty status h. Permanent disability retirement is directed under Title 10, U.S. Code, section 1201 or Title 10, U.S. Code, section 1204, as applicable, when the Soldier is determined unfit for continued service and has a compensable disability in accordance with the standards of this regulation, and the disability(ies) are permanent and stable or, subject to the requirements in chapter 5 concerning certain mental diagnosis, the disability rating will not improve to less than 80 percent. Secondly, the Soldier has at least 20 years of service as computed under Title 10, U.S. Code, section 1208 (see Department of the Army (DA) Pamphlet (DA PAM 635–40) (Procedures for Disability Evaluation for Retention, Retirement, or Separation) for explanation of this computation) or the Soldier has a combined disability rating of at least 30 percent. 3. DA PAM 635–40 stablished procedures for determining a disposition when a Soldier’s medical conditions may prevent the Soldier from satisfactorily performing their duties. The Soldier may be separated, retired, and retained to perform their current duties, or reclassified into different duties. Paragraph 3-12 states in accordance with Title 10, U.S. Code, sections 1201 and 1204, a Soldier determined unfit for compensable disability is granted disability retirement if the Soldier has either 20 years of service as computed under Title 10, U.S. Code 1208 or a minimum disability rating of 30 percent. It is important that PEBLOs, PEB adjudicators, and transition centers understand the computation of this service, as it can mean the difference between a disability retirement and a disability separation with severance pay when the Soldier does not have the minimum 30 percent. In general, the computation is the sum of the Soldier’s active service, the Soldier’s equivalent years of service for the Soldier’s membership, and/or inactive duty training points. For regular retirement, this combination of service is called Title 10, U.S. Code, section 1405 service. Unlike regular retirement in which the Title 10, U.S. Code, section 1405 service is listed only after the Soldier obtains 20 years of active Federal service, equivalent years of service is counted for disability retirement in meeting the 20-year threshold. 4. Title 10, U.S. Code, section 1201, provides for the permanent physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. 5. Title 10, U.S. Code, section 1202 provides for placement on the TDRL with retired pay when the disability is not determined to be of a permanent nature and stable. 6. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating less than 30 percent. 7. Title 10, U.S. Code, section 1405 provides for the computation of the years of service of a member of the Armed Forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding his years of active service and years of service with which he would be entitled to be credited under section 12733 of the title if he were entitled to retired pay under section 12731 of this title. In determining a member’s years of service each full month of service that is in addition to the number of full years of service creditable to the member shall be credited as 1/12 of a year, and any remaining fractional part of a month shall be disregarded. 8. Title 10, U.S. code, section 12732 (Entitlement to retired pay: computation of years of service) is the specific criteria for determining whether a person is entitled to retired pay under section 12731 of this title. A person’s years of service are computed by adding one point for each day of active service or full-time service under various sections while performing annual training duty or while attending a prescribed course of instruction; one point for each attendance at a drill or period of equivalent instruction; and 15 points for each membership year (in the U.S. Army Reserve Component). Service in the inactive Reserve Component including the inactive ARNG may not be counted toward computation of retirement points. 9. Title 37, U.S. Code, section 501 (Payments for unused accrued leave) states a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or National Oceanic and Atmospheric Administration, who has accrued leave to his credit at the time of his discharge, is entitled to be paid in cash or by a check on the Treasurer of the United States for such leave on the basis of the basic pay to which he was entitled on the date of discharge. Unused accrued leave for which payment is made is not considered as service for any purpose. The number of days upon which payment is based may not exceed sixty, less the number of days for which payment has been previously made under after February 9, 1976. The number of days upon which payment may be based shall be determined without regard to any break in service or change in status in the uniformed services. 10. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. 11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 12. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidated the policies, principles of support, and standards of service regarding processing personnel for transition. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior action, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on terminations of a Soldier’s service. When separation is ordered, the separation approval document must be present for transition processing these included the Enlisted Record Brief or Officer Record Brief, separation approval documents, separation orders and any other document authorized for filing in the personnel records. 13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 12 (Retirement for length of service) provides for the procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers who are retiring in their enlisted status. Years of service for retirement are computed by adding all active federal service in the Armed Forces and service computed under Title 10, U.S. Code, section 3925. A Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request under the provisions of Title 10, U.S. Code, section 3914. The Soldier must have completed all required service obligations at the time of retirement. 14. The Defense Finance and Accounting Service (DFAS) website states CRSC, enacted by Congress on 2 December 2002, is a program that was created for disability and non-disability military retirees with combat-related disabilities. It is a tax free entitlement that one receives each month along with any retired pay one may already be receiving. To qualify for CRSC, one must be entitled to and/or receiving retired pay; be rated at least 10 percent by the VA; waive your VA pay from your retired pay and file a CRSC application with your branch of Service. If you are due retroactive payment, DFAS will audit your account to determine whether or not you are due it. DFAS does have access to VA pay records. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007924 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1