ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20190001414 APPLICANT REQUESTS: in effect, correction of his military service records enabling him to retire based on length of service as opposed to a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letters * DA Form 3349 (Physical Profile) * DA Form 199 (Record of Physical Evaluation Board (PEB) proceedings) x 2 * Record of Medical Evaluation Board (MEB) proceedings * Retirement Orders# D102-43 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs Compensation and Pension letter * Response letter from the U.S. Army Human Resources Command (HRC) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was medically retired on 12 June 1992. At that time, his service record reflected 18 years, 11 months and 18 days of active service. b. Since he had over 18 years and 6 months of service, he should have been afforded the option to continue on active duty until eligible for a retirement based on years of service (20 years). c. While going through the Physical Disability Evaluation System (PDES), he states he was not properly counselled regarding his right to request a continuation of active duty (COAD) and therefore he was denied the option to be retained on active duty until reaching 20 years of active federal service d. He further states in his self-authored letters dated 24 May 2018 and 19 December 2018 he specifically requests: * voiding placement on the Temporary Disability Retired List (TDRL) * voiding placement on the Permanent Disability Retirement List (PDRL) with a 30% disability rating * approval for COAD effective 12 June 1992 to 30 June 1993 * retirement for length of service effective 1 July 1993 pursuant to Title 10, U.S. Code section 3914 3. The applicant provides: a. DA Form 3349, dated 13 January 1992, indicating several medical limiting conditions requiring a MEB. b. Record of MEB proceedings dated 23 January 1992, indicating referral to a PEB for 7 identified conditions. c. DA Form 199, a record of PEB proceedings dated 5 February 1990, with the following results: * Block 9. The Board found the applicant was physically unfit and recommended a combined rating of 10% and that the applicant’s disposition be separation with severance pay if otherwise qualified. * The document further states that the Board considers the proper disposition to be separation with severance pay. Ratings of less than 30 percent for Soldiers with less than 20 years of retirement service require separation with severance pay in lieu of retirement. * The applicant did not provide and his record is void of pg 2 of his DA Form 199 of Item 13 election and Item 14 counselor’s statement regarding the findings and recommendation of the PEB. d. DA Form 199, a record of PEB proceedings dated 6 May 1992, with the following results: * Block 8. PEB concludes that the applicant’s medical conditions prevents satisfactory performance of duty in his grade and MOS. These conditions have not stabilized to the point that a permanent degree of severity can be determined. To assist in future evaluations of this case, the US Army Physical Disability Agency may request information from the applicant concerning his medical treatment during his stay on the Temporary Disability Retied List. * Block 9. The Board finds the applicant to be unfit and recommends a combined rating of 50% and that the applicant’s disposition be placed on the Temporary Disability Retied List with reexamination date of 1 August 1993. * Block 13 (Election of member) that the applicant signed on 12 May 1992, acknowledging that he had been advised of the findings and recommendations of the PEB and that he had received a full explanation of the findings, recommendations and the legal rights that pertained to him. * Block 14 (Counselor’s Statement) signed by the counselor, stated the applicant was informed of the findings and recommendations of the Physical Evaluation Board and it was explained to him the results of the findings and recommendations, and his legal rights pertaining thereto and that the applicant made the election shown in Block 13. e. Retirement orders # D102-43 dated 22 May 1992 releasing the applicant from active duty due to physical disability and placing him on the TDRL effective 13 June 1992. f. DD Form 214 reflecting his retirement on 12 June 1992. His record of service indicates completion of 16 years, 2 months and 17 days of active service during this period and 2 years, 9 months and 1 day of prior active service; total active service 18 years, 11 months and 18 days. g. Department of Veterans Affairs compensation letter dated 25 March 1993 indicating a combined disability rating of 60%. h. Response letter from HRC to the applicant dated 3 December 2018 advising the applicant that the Army has an interest in maintaining the integrity of its records. The information contained reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed. HRC is not authorized to change his years of service towards retirement. 4. A review of the applicant’s service records shows the following on: a. 25 June 1973 – he enlisted in the Regular Army; served 2 years 9 months and 1 day prior to being discharged for immediate reenlistment on 25 March 1976 b. 26 March 1973 – he reenlisted on active duty; served 16 years, 2 months and 17 days of active service during this period c. On 1 October 1986, the applicant was identified by a Qualitative Management Program (QMP) selection board for early termination due to disciplinary actions to include summary court martial. As a result, a bar to reenlistment was initiated on 21 January 1987. Current Expiration Term of Service (ETS) date of 31 October 1988. d. On 27 October 1988, the applicant was counselled regarding his rights and the advantages of remaining in an active status beyond the scheduled date of release for the purpose of completing hospital care and physical disability evaluation under the provisions of Chapter 61, Title 10, USC. The applicant endorsed the letter further electing to be retained beyond his scheduled ETS date. e. On 31 October 1988, a 3 month extension was approved based on the applicant’s additional medical treatment requirements changing his ETS date to 31 January 1989. f. On 31 August 1989, a MEB was conducted and the applicant was referred to a PEB for 3 identified medical conditions. g. On 24 October 1989 for the purpose of completing hospital care and physical disability evaluation under the provisions of Chapter 61, Title 10, USC, the applicant endorsed the letter further electing to be retained beyond his scheduled ETS date h. On 5 February 1990, the PEB found the applicant was physically unfit and recommended a combined rating of 10% and that the applicant’s disposition be separation with severance pay. i. On 25 June 1991 for the purpose of completing hospital care and physical disability evaluation under the provisions of Chapter 61, Title 10, USC, the applicant endorsed the letter further electing to be retained beyond his scheduled ETS date j. On 2 January 1992, the applicant was retained beyond his established release date of 16 February 1992, and he submitted a request for a 180 days extension for completion of physical evaluation board. k. On 7 January 1992, the applicant’s retention was continued until 4 August 1992. l. On 23 January 1992 an MEB was conducted and the applicant was referred to a PEB for 7 identified medical conditions. The applicant was again extended on active duty until 4 August 1992. m. On 6 May 1992, the PEB found the applicant to be unfit and recommended a combined rating of 50% and that the applicant’s disposition be placed on the Temporary Disability Retired List (TDRL) with reexamination date of 1 August 1993. n. On 22 May 1992, HRC issued the applicant a memorandum, Subject: Placement on the TDRL, which explained how the applicant was placed on the TDRL effective 13 4 June 1992 and is required by law to undergo periodic physical examinations. An information sheet was attached and explained that after his medical condition has stabilized he will either be: retired for permanent disability if his disability is rated 30% or more and he has less than 20 years of service; retired for permanent disability no matter the percentage of disability if he has over 20 years of service; separated with severance pay if his disability is rated less than 30% and he has less than 20 years of service; or found physically fit for return to active duty. o. Effective 13 June 1992, the applicant was placed on the TDRL per his Retirement orders # D102-43 dated 22 May 1992, releasing him from active duty due to physical disability. p. On 7 April 1995, a PEB convened with the following results: * Block 8. PEB concluded his present PEB rating of 30% accurately reflects the current degree of severity of his condition. The PEB considers him to have stabilized sufficiently for rating purposes and recommends permanent retirement. * Block 9. The Board finds the applicant is physically unfit and recommends a combined rating of 30% and that the applicant’s disposition be permanent disability retirement. * Block 13 (Election of member) that the applicant signed on 19 April 1995, acknowledging that he had been advised of the findings and recommendations of the PEB and that he had received a full explanation of the findings, recommendations and the legal rights that pertained to him. * Block 14 (Counselor’s Statement) was shown as unsigned by a counselor. The block contains the following excerpt as part of the form, to which the counselor would attest with his/her signature: “I have informed the member of the findings and recommendations of the Physical Evaluation Board and explained to him/her the results of the findings and recommendations and his legal rights pertaining thereto. The member has made the election shown in Block 13.” q. On 15 May 1995, Orders D92-4, removed the applicant from the TDRL because of permanent physical disability and permanently retired him with a 30% disability. 5. See applicable REFERENCES below. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief. The Army awarded the applicant a medical disability retirement and placed him on the permanent disability retirement list (PDRL) on 15 May 1995 with a 30% disability retirement rating. At the time, he had 18 years and 11 months of service, which is over one year short of a regular, 20 year retirement, yet he received a medical retirement. The Board finds no injustice or error and no compelling reason to amend the applicant’s record to add a year of unearned time in service and reflect a 20 year retirement. 1. When the applicant was placed on the PDRL on 15 May 1995, he was medically retired with a 30% disability rating. Previous to that, the applicant would have ETSd on 31 October 1988 due to a bar to reenlistment imposed on 21 January 1987 due to the applicant being selected for discharge under the QMP. Had he ETSd under the QMP bar, the applicant would have received severance pay and not been eligible for an active duty retirement. However, due to the applicant’s medical conditions, the Army retained him to undergo medical evaluation as evidenced by an MEB and several PEBs from 1990 to 1995 and ultimately and compassionately awarded him a medical disability retirement at 30% in 1995. 2. The applicant states that he was never provided the opportunity to submit a request for COAD or was apprised of the benefits of remaining on active duty, but the Board found insufficient evidence to support this claim. a. The record contains evidence that he was advised of his legal rights and the applicant did not provide sufficient evidence to the contrary. (1) In a signed affidavit dated 27 October 1988, the applicant stated that he did not desire retention on active duty in the Army beyond the scheduled date of expiration of his term of service and acknowledged that if he elected to be released from active duty as scheduled he would not be eligible for separation or retirement for physical disability. (2) On 12 May 1992, the applicant signed a DA Form 199 (PEB proceedings) that found him physically unfit with a recommendation of a combined rating of 10% and that his disposition be separation with severance pay; he concurred with the findings and recommendations with the statement that he “received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto”. (3) The 12 May 1992 DA Form 199 (PEB Proceedings) also included the signature of the applicant’s PEB liaison officer (PEBLO) who affixed her signature attesting that she had informed the applicant of his legal rights. (4) The applicant’s record includes a DA Form 199 (PEB proceedings), dated 7 April 1995, that ultimately found the applicant unfit for duty with a 30% disability rating. The applicant signed the DA Form 199 on 19 April 1995, concurred with the findings and did not request COAD. Therefore, the Board finds that the applicant did not prove that he was not afforded the opportunity to appeal the PEB’s decision and remain on active duty for further evaluation. The record does contain the orders assigning him to the PDRL in May 1995 with a 30% disability rating. 3. Therefore, the Board found no basis to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S Code, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement or Separation) paragraph 3-9 (The TDRL) states that the TDRL is used in the nature of a "pending list." It provides a safeguard for the government, against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability, causing him or her to.be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. a. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20.years of service computed under section 1208, Title 10, United States Code. In addition, the condition must be determined to be temporary or unstable. b. A Soldier who is determined to be physically fit will not be placed on the TDRL regardless of the severity of the physical defects or the fact that they might become unfitting were the Soldier to remain on active duty for a period of time. 3. AR 635-40 Chapter 3-10 (Continuance of Disabled Personnel on Active Duty (COAD)) states that a soldier who is unfit because of physical disability will not be COAD solely to increase benefits. He or she will not be COAD unless his or her retention is justified as being of value to the Army. 4. AR 635-40 Chapter 6 (COAD) paragraph 6-3 (Qualification for continuance) states that to be considered for COAD the Soldier must be: * found unfit by a PEB because of disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence * capable of maintaining one’s self in a normal military environment without adversely affecting one’s health and the health of others and without undue loss of time from duty for medical treatment * physically capable of performing useful duty in an MOS for which he is currently qualified or potentially trainable * have 15 years but less than 20 years of total service or * is qualified in a critical skill or shortage MOS confirmed by the Personnel Command (PERSCOM) * disability is the result of combat 5. AR 635-40 Paragraph 6-4 (Processing of application) A soldier on active duty being evaluated for possible unfitness because of physical disability may submit an application through the MTF for COAD. The application must be submitted when the 8 soldier is being evaluated by the MEBD or during counseling by the PEBLO after the informal PEB. The soldier may not submit the application directly to the PEB. 6. AR 645-40 Paragraph 6-5(b) states that when a Soldier with 18 years but less than 20 years of active service is referred to a PEB for further processing and elects not to submit a request for COAD, such election will be in writing and attached to the MEBD proceeding. If the Soldier does not indicate in writing his desire not to request COAD, the Physical Evaluation Board Liaison Officer will include a signed certificate stating that the Soldier has been counselled and elects not to submit an election in writing. 7. Appendix C-10 (Temporary Disability Retired List) states that Soldiers who entered active duty prior to 8 September 1980 and were placed on the TDRL will be advised by Physical Evaluation Board Liaisons that they are entitled to a minimum monthly payment of 50% of their base pay. A soldier will not be removed from the TDRL without processing through the PEB unless the fifth anniversary of placement on the TDRL has occurred and the Soldier has failed to obtain the required periodic evaluation. Periodic medical examinations are required at least every 18 months. The Soldier will receive instructions detailing where and when to report. If the Soldier fails to respond, their retired pay will be stopped. Final disposition may result in permanent retirement with the same, greater, or lessor disability percentage rating; separation with severance pay (if less than 20 years of service); or a finding of physical fitness. 8. Title 10 U.S Code 1210 states that a physical examination shall be given at least once every 18 months to each member of the armed forces whose name is on the temporary disability retired list to determine whether there has been a change in the disability for which he was temporarily retired. He may be required to submit to those examinations while his name is carried on that list. If a member fails to report for an examination under this subsection, after receipt of proper notification, his disability retired pay may be terminated. If, as a result of a periodic examination or upon a final determination it is determined that the member’s physical disability is of a permanent nature and stable and is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, his name shall be removed from the temporary disability retired list and he shall be retired (permanent disability retired list). 9. Title 10 U.S. Code 1176 states that a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 7314 or 9314 (20 – 30 years of service) of this title shall be retained on active duty until the member is qualified for retirement unless the member is sooner retired or discharged under any other provision of law. 10. Title 10 U.S. Code 8914 - Twenty to thirty years: enlisted members. Under regulations to be prescribed by the Secretary of the Air Force, an enlisted member of the Air Force who has at least 20, but less than 30, years of service computed under section 8925 of this title may, upon his request, be retired. 11. Title 10 U.S. Code 8925 - Computation of years of service: voluntary retirement; enlisted members. For the purpose of determining whether an enlisted member of the Air Force may be retired under section 8914 or 8917 of this title, his years of service are computed by adding all active service in the armed forces.