ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 August 2019 DOCKET NUMBER: AR20180016258 APPLICANT REQUESTS: * correction of the creditable years of service (both active and non-regular) currently reflected on his DA Form 5892 (Physical Disability Information Report) and his Order # (Medical retirement) * that the reflected changes result in entitlement to a physical disability retirement with 20 years of active federal service * amend retirement orders basic pay years from 19 years, 5 months and 24 days to 30 years and 2 months; 1405 years to reflect 21 years, 8 months and 14 days * retroactive payment of retirement entitlements based on his regular retirement eligibility resulting in adjustment to his previously received disability overpayment APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Itemized addendum to DD Form 149 * Inspector General Response Letter * DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet) * Physical Disability Information Report (PDIR) * Order# 263-0105 * NGB Form 23A (Army National Guard Annual Statement) * Army National Guard 1405 Worksheet * DD Form 214 (Certificate of Release or Discharge from Active Duty) (4) * NGB Form 22 (Report of Separation and Record of Service) * Leave and Earnings Statement (LES) * Retiree Account Statement * Department of Veterans Affairs (VA) Letter * Email correspondence (5) FACTS: 1. The applicant states that during his Medical Evaluation Board process, the servicing Physical Evaluation Board Liaison Officer (PEBLO) utilized an outdated retirement point accounting management worksheet to calculate his retirement points resulting in an error in his years of service. He further states that the total years of service, 1405 service time and total active federal service reflected on his PDIR is incorrect. In result of these errors, his retirement orders are also incorrect. The applicant contests that his DA Form 5892 should reflect 21 years 8 months and 14 days of total creditable service. Currently, the document reflects 19 years 5 months and 24 days. The 1 year, 10 months and 22 days of non-regular service has been omitted thereby making him ineligible for a regular retirement based on years of service. The applicant further provides the following chronological history of events leading to his request: * 18 September 2017 – he was determined unfit for duty; received his DA Form 5892 and noted the errors in his years of service * 20 September 2017 – he received his retirement orders and instructions; information was generated based on incorrect and unverified information * 16 October 2017 – he met with a Defense Finance Accounting Services representative who also failed to verify his years of service prior to his separation 2. In his attempts to exhaust administrative remedies, the applicant provides the following chronological history of events: * 16 April 2018 – he was advised by Sergeant First Class (SFC) , from the Arizona National Guard, that he received guidance from the PEBLO and Transition Center on how to calculate 1405 time; advised to apply 1405 time/points towards creditable regular service retirement * 4 May 2018 – he initiated an Inspector General request for assistance concerning retirement entitlement error; advised that “1405 time would not be considered in calculating active federal service time except when a Soldier is being medically retired”; point of contact was SFC * 7 May 2018 – he requested assistance from his PEBLO, Medical Evaluation Board Counsel and the Transition Center representative; advised to request assistance from the ARBA * 9 May 2018 – SFC responded to his request for assistance by referencing the ABCMR guide and appeals process through the Adjutant General’s office; advised to stand by and wait their response * 7 August 2018 – SFC advised him that the IG office were in the process of closing out the investigation concerning to his retirement points; further informed that if the outcome from the requested ABCMR assistance was unfavorable that they would appeal the decision on his behalf * 21 September 2018 – the IG investigation was closed and he was advised to seek assistance from the ABCMR 3. By the applicant’s calculation, he should be credited with: * 30 years, 2 months and 6 days (Basic Pay) * 21 years, 8 months and 14 days (Disability Retirement) * 21 years, 8 months and 14 days (Section 1405) 4. The applicant provides an: * Inspector General Response Letter dated 21 September 2018 – stating that during their inquiry it was noted that an outdated RPAM statement was used to complete the calculations reflected on the PDIR, the DA Form 5892 and Order#263-0105 resulting in several errors * DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet) – reflective of 19 years and 5 months of service being utilized to provide an estimate of his retirement pay * Physical Disability Information Report (PDIR) dated 18 September 2017 – reflective of 19 years 6 months and 11 days being credited towards the calculation of his disability retirement (rating of 60%) and 21 years, 3 months and 7 days credited towards his Section 1405 calculations * Order# 263-0105 dated 20 September 2017 – reflective of 60 percent disability rating, 19 years 5 months and 24 days credited towards both disability retirement and Section 1405 calculations * NGB Form 23A (Army National Guard Current Annual Statement) dated 8 June 2018 – reflective of 7132 active duty points; 7808 total points for retired pay and 30 years, 2 months and 6 days creditable years of service towards retirement pay eligibility (8032 points) * Army National Guard 1405 Worksheet dated 7 May 2013 – reflective of 16 years 5 months and 11 days of Section 1405 service credit towards retirement * DD Form 214 (Certificate of Release or Discharge from Active Duty) (4) dated 11 December 2017, 1 March 2007, 5 January 2005, 31 January 1992 and 4 June 1987 – reflective his active duty service * NGB Form 22 (Report of Separation and Record of Service) dated 17 March 1988 – reflective of 1 year, 1 month and 26 days of service in the National Guard * Leave and Earnings Statement (LES) dated 31 December 2017 – reflective of 30 years of service credit towards base pay entitlement * Retiree Account Statement dated 1 February 2018 – reflective of his pay and entitlements as of that date * Department of Veterans Affairs (VA) Letter dated 1 February 2018 – reflective of an increase in VA compensation rate and amount currently being withheld * Email correspondence reflective of the applicants communication with multiple personnel concerning the errors noted in the previous calculation of his retirement points, years of service and possible eligibility of a 20 year retirement 5. A review of the applicant’s records indicates the following on: * 22 January 1987 – he enlisted in the Army National Guard and served 1 year, 1 month and 26 days ending on 17 March 1988 * 27 February 1987 – he served on active duty for training for 3 months and 8 days; no prior active service credit but 1 month and 5 days of inactive service credit * 17 March 1988 – he enlisted in the Army and served 3 years, 9 months and 15 days on active duty ending on 31 January 1992; 3 months and 8 days of prior active service credit * 30 January 2003 – he served on active duty for 1 year 11 months and 6 days ending on 5 January 2005; 11 years, 10 months and 16 days of prior inactive service * 22 March 2005 –he served on active duty for 1 year 11 months and 10 days ending on 1 March 2007; 4 years 9 months and 20 days of prior active service and 13 years, 4 months and 10 days of prior inactive service credit * 11 December 2017 (Order#) – he was medically retired and transferred into the Retired Reserve after having served on active duty for 19 years, 5 months and 24 days 6. On 26 July 2019 an advisory opinion was provided by the National Guard Bureau recommending a partial approval of the applicant’s request. In their opinion, the NGB determined: a. that in preparation of the applicant’s DA Form 5892, the assigned PEBLO did not utilize the correct retirement points history statement resulting in an error in the years of service being credited to the applicant. In further review with the transition center, they acknowledged the errors on the applicant’s orders and would correct those errors based on the newly provided retirement points history. b. the applicant’s request for addition of the non-regular service time to be added to his DA Form 5892 is not permissible for an active federal service retirement except in cases wherein a Soldier has less than a 30 percent disability rating and addition of the non-regular service (1405) time would result in medical retirement eligibility based on Title 10, USC 1405 (Years of Service) and DA PAM 635-40 para 3-12. c. the applicant at the time of separation received a rating of 60 percent; therefore, he was given a medical retirement. His request to have his non-regular service time and regular service combined resulting in a length of service retirement is not permissible because the applicant does not have a 20 year letter. d. the applicant would need to request a Continuation of Active Duty through the Physical Disability Agency (PDA) in order to obtain the additional 5 months of active federal service required to reach his retirement for length of service eligibility. A review of the applicant’s Medical Evaluation Board proceedings does not reflect that the applicant was counseled regarding COAD possibilities. e. In conclusion of their opinion, the NGB clarifies that the applicant’s years of service were computed in error and should be corrected and the Soldier be provided with an opportunity to apply for COAD through the PDA in order to reach 20 years of active federal service. They were unable to support retroactive payment entitlement due to the applicant not having 20 years of service eligibility. 7. DA PAM 635-40 (Procedures for Disability Evaluation for Retention, Retirement or Separation) paragraph 3-12 states that a Soldier determined unfit for compensable disability is granted disability retirement if the Soldier has either 20 years of service as computed under 10 USC 1208 or a minimum disability rating of 30 percent. In general, the computation of service 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 10 USC 1405 service. Unlike regular retirement in which the Title 10 USC 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. A minimum of 7,200 points of combined active duty, membership, and inactive duty training points results in eligibility for a disability retirement. 8. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation) paragraph 6-7 (Qualification and Process for continuation on active duty) states that to be eligible for COAD a Soldier must have 15 but less than 20 years of active federal service, qualified in a critical skill or shortage MOS and have a combat or terrorism related disability. Soldiers with 18 but less than 20 qualifying years of service, a declination to request COAD should be in writing and attached to the MEB proceedings. A Soldier is eligible for disability retired pay if he has a rating of less than 30 percent and has 20 years of active service for retirement (19 years and 6 months of active service is not 20 years for retirement) or a disability rating of 30 percent or more. 9. DOD 7000.14-R (Financial Management) section 010307 (Service Creditable for Disability Retirement) states that a Soldier who is not in the Regular Army is credited with service calculated based on the sum of active service in the National Guard (active duty for training and drills) and all days of active service (one day for each point) divided by 360 10. Title 10 USC 12733 (Computation of Retired pay: Computation of Years of Service) states that for the purpose of computing retired pay, the persons years of service and any fraction of such year are computed by dividing 360 into the sum of the Soldiers days of active service, days of annual training or while attending a service school. One point for each day will be granted not to exceed the amount of days provisioned by the governing year. 11. AR 135-180 (Retirement for Non-Regular Service) states that concurrent retirement and disability payment entitles eligible military retirees with a length of service retirement (20 Year Notification of Eligibility for Retired Pay) and a VA disability rating of 50 percent or higher to receive both their military retired pay and VA disability compensation. Retirees with a 15 Year Notification of Eligibility for Retired Pay or who were retired on the temporary disability retired list or permanent disability retired list are not eligible for this compensation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined partial relief was warranted. The Board considered the applicant's statement, his record of service, his medical retirement, the percentage of disability and the length of his active duty service. The Board considered the review of the National Guard Bureau advising official and was in agreement with the conclusions. Based upon the evidence in the records and the advisory opinion from the NGB, the Board concluded that the applicant’s years of service were computed in error and should be corrected in accordance with the updated retirement points history. Additionally, based on the lack of evidence to show that the applicant's was counseled regarding COAD, the Board determined the Soldier should be provided with an opportunity to apply for COAD through the PDA in order to reach 20 years of active federal service for a length of service retirement, that he is currently not eligible for. Additionally, again based upon the NGB advisory, the Board concluded the applicant should be retroactively paid any monies due to the applicant based on the recalulation of his retirement points. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as follows: - refer his records to the National Guard Bureau for proper computation of his retirement points for purposes of his medical retirement and pay him any monies due as a result of this correction, and; - provide the Soldier with an opportunity to apply for COAD through the PDA in order to reach 20 years of active federal service, if otherwise eligible. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains retroactive payment of retirement entitlements. X 10/30/2019 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. REFERENCES: 1. DA PAM 635-40 (Procedures for Disability Evaluation for Retention, Retirement or Separation) paragraph 3-12 states that a Soldier determined unfit for compensable disability is granted disability retirement if the Soldier has either 20 years of service as computed under 10 USC 1208 or a minimum disability rating of 30 percent. In general, the computation of service 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 10 USC 1405 service. Unlike regular retirement in which the Title 10 USC 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. A minimum of 7,200 points of combined active duty, membership, and inactive duty training points results in eligibility for a disability retirement. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement or Separation) paragraph 6-7 (Qualification and Process for continuation on active duty) states that to be eligible for COAD a Soldier must have 15 but less than 20 years of active federal service, qualified in a critical skill or shortage MOS and have a combat or terrorism related disability. Soldiers with 18 but less than 20 qualifying years of service, a declination to request COAD should be in writing and attached to the MEB proceedings. A Soldier is eligible for disability retired pay if he has a rating of less than 30 percent and has 20 years of active service for retirement (19 years and 6 months of active service is not 20 years for retirement) or a disability rating of 30 percent or more. 3. DOD 7000.14-R (Financial Management) section 010307 (Service Creditable for Disability Retirement) states that a Soldier who is not in the Regular Army is credited with service calculated based on the sum of active service in the National Guard (active duty for training and drills) and all days of active service (one day for each point) divided by 360 4. Title 10 USC 12733 (Computation of Retired pay: Computation of Years of Service) states that for the purpose of computing retired pay, the persons years of service and any fraction of such year are computed by dividing 360 into the sum of the Soldiers days of active service, days of annual training or while attending a service school. One point for each day will be granted not to exceed the amount of days provisioned by the governing year. 5. AR 135-180 (Retirement for Non-Regular Service) states that concurrent retirement and disability payment entitles eligible military retirees with a length of service retirement (20 Year Notification of Eligibility for Retired Pay) and a VA disability rating of 50 percent or higher to receive both their military retired pay and VA disability compensation. Retirees with a 15 Year Notification of Eligibility for Retired Pay or who were retired on the temporary disability retired list or permanent disability retired list are not eligible for this compensation.