ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20190005042 APPLICANT REQUESTS: to be returned to Active Duty to allow him to Continue on Active Duty (COAD) so that he may qualify for 20 years of Active Federal Service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * 2 memorandums * Independent Behavioral Health Review * 2 Letters of Recommendation * Enlist Record Brief (ERB) * Physical Profile Record * Death Certificate * Privacy Act Form * DA Form 2879 (Authorization for Disclosure of Medical or Dental Information) * Emails * COAD Checklist * DA Form 4187 (Personnel Action) FACTS: 1. The applicant states: a. He is currently serving at Ft Bliss, TX as a senior signal noncommissioned officer (NCO). He just recently went through a medical evaluation board (MEB) and was found unfit for duty. His first COAD was incomplete. A completed COAD was resubmitted to his integrated disability evaluation system (IDES) physical evaluation board liaison officer (PEBLO), but according to the findings from Sen. Cruz's office the United States Army Physical Disability Agency (USAPDA) never got the second request which was complete. On 11 February 2019, he was refused reconsideration of COAD Service. Within the limitations of his current profile, he is still able to perform his duties within the scope of his current Branch. In his request for this COAD, he is requesting to fulfil his requirements to properly retire from the United States Army and Active Federal Service (AFS). He currently has over 22 years of military service and over 19 years of active duty service. A MEB is insulting to a NCO whom has served the United States Army honorably for multiple deployments, let alone an individual whom has sacrifice multipliable years away from his family. b. He is very dissatisfied on the current decision not to be retained. He is one of the most respected and sought out NCOs on signal support and advice here at Ft. Bliss and other installations. He has served his units and the United States Army with dignity and respect. He has always completed his missions and duties to the up most of his ability and knowledge. He has never backed down from adversity or will ever. He is asking the United States Army to allow him to continue his service to the completion of commitment. Before and during his MEB, in which he was diagnosed with severe PTSD and depression, he was dealing with and caring for his oldest son whom was diagnosed with terminal cancer. He received his effective date to leave the Army on 16 November 2018. Within a couple days he was informed his son was being moved to Hospice Care. His son passed away on 6 December 2018. This caused him to lose the whole month of December and half of January. 2. The applicant was deployed on the following occasions: * service in Iraq from 1 November 2006 through 11 December 2007 * service in Iraq from 8 August 2011 through 5 December 2011 * service in Afghanistan from 30 May 2012 through 17 February 2013 3. The applicant was issued a permanent P3 profile on 19 October 2017. 4. On 10 August 2018, a PEB found the applicant physical unfit due to PTSD and cervical degenerative disc disease and recommended a rating of 60 percent and that the applicant be placed on TDRL with re-examination during May 2019. On 4 September 2018, the applicant did not concur and indicated he attached a written appeal. His appeal is not available for review. 5. A DA Form 4187, dated 7 January 2019, shows the applicant requested COAD. 6. On 2 February 2019, an Independent Behavioral Health Review recommended a COAD waiver for the applicant based on the findings and interview with the applicant. 7. On 26 February 2019, the applicant was informed and acknowledged he understood his initial approved date for medical retirement of 13 February 2019, had been extended to no later than 8 March 2019. He was further advised that no further extensions would be considered and or approved. 8. The applicant was placed on the TDRL effective 9 March 2019, because of physical disability. His issued DD Form 214 shows he completed 13 years, 3 months, and 25 days of net active service this period, with 5 years, 9 months, and 10 days of prior active service. 9. The applicant provides two letters of support recommending his request for COAD be approved. He also provides a Death Certificate which shows his son died on 6 December 2018. 10. On 15 July 2019, USPDA, legal advisor provided an advisory opinion. USAPDA legal advisor states, in part, the applicant desires the opportunity to submit a second COAD request. The Special Actions Office of USAPDA provided an extension to his retirement date based on a family hardship and the death of his son. Prior to his retirement, the applicant did not provide a completed COAD request packet. At this time, to facilitate the applicant’s request, an authorization from ABCMR directing the revocation of his disability retirement orders and voiding his DD Form 214 would be needed to reopen his case so that he may then submit a completed COAD packet request. If ABCMR approved such request and his COAD packet was approved then the applicant's retirement pay would be forfeited and recouped. Moreover, due to his enlistment into a military specialty based on the needs of the Army, he would require a medical waiver because was found unfit. The applicant maintains he can perform his military duties, but only if he were to be reassigned to his previous unit and assignment from which he was medically retired from. This is also highly unlikely. As a result, the applicant’s request is legally insufficient. A copy of the complete USAPDA advisory was provided to the Board for their review and consideration. 11. On 19 July 2019, the applicant was provided a copy of the PDA advisory for comment or rebuttal. He did not respond. 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. It states, in part: a. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands their rights. The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or he may request an extension. c. Paragraph 6-2 states the primary objective of the COAD program is to conserve manpower by effective use of needed skills or experience. A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation. Continuation in a military status is generally subject to the Soldier’s consent. However, the Secretary of the Army or their designee may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience. d. Paragraph 6-4 states, normally, COAD will be for any period of time up to the last day of the month in which the Soldier attains 20 years of active Federal service for purposes of qualifying for length of service retirement under Title 10, U.S. Code, section 3911 or 3914. e. Paragraph 6-8 states before the Soldier completes an application for COAD, the PEBLO will counsel the Soldier according to appendix C of this regulation. The PEBLO will specifically inform the Soldier of the following: (1) Before a COAD application is forwarded to the approval authority, the PEB will process the case to completion, to include the following: convening a formal hearing, if requested; determining a percentage rating; and recommending a disposition that will apply if application for continuation is disapproved. The PEBLO will counsel the Soldier on the eligibility criteria for requesting continuation and that if continuation is approved, the Soldier must be referred to the PDES before expiration of the continuation period unless Soldier waives in writing the final referral, that the final PDES evaluation could result in a fit finding, and that if the request is disapproved, the approval authority will notify the military treatment facility of the USAPDA. f. Paragraph 6-10 states the fact that a Soldier has or has not applied for COAD will not influence the determination of fitness or percentage of the disability rating. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request. Supporting documents, evidence in the records and an advisory opinion regarding his request. The Board considered he applicant’s statement, the findings of the PEB, his appeal and request for COAD, his personal loss and the extension of his medical retirement date, the length of his service and medical retirement. The Board considered the USAPDA advisory opinion noting the applicant had been properly retired, had been given an extension to his retirement date based on his personal loss, no evidence of a second request for COAD, the forfeiture of already received retired pay and the PDA opinion that finding the suitable assignment for the applicant considering his disability would be unlikely. Based on a preponderance of evidence, the Board determined that the applicant failed to meet medical retention standards, was found unfit for continued service and that his medical retirement in March 2019 was 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 :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. 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. ADMINISTRATIVE NOTE(S): Not Applicable ? REFERENCES: Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states, in part: a. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands their rights. The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or he may request an extension. c. Paragraph 6-2 states the primary objective of the COAD program is to conserve manpower by effective use of needed skills or experience. A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation. Continuation in a military status is generally subject to the Soldier’s consent. However, the Secretary of the Army or their designee may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience. d. Paragraph 6-4 states, normally, COAD will be for any period of time up to the last day of the month in which the Soldier attains 20 years of active Federal service for purposes of qualifying for length of service retirement under Title 10, U.S. Code, section 3911 or 3914. e. Paragraph 6-8 states before the Soldier completes an application for COAD, the PEBLO will counsel the Soldier according to appendix C of this regulation. The PEBLO will specifically inform the Soldier of the following: (1) Before a COAD application is forwarded to the approval authority, the PEB will process the case to completion, to include the following: convening a formal hearing, if requested; determining a percentage rating; and recommending a disposition that will apply if application for continuation is disapproved. The PEBLO will counsel the Soldier on the eligibility criteria for requesting continuation and that if continuation is approved, the Soldier must be referred to the PDES before expiration of the continuation period unless Soldier waives in writing the final referral, that the final PDES evaluation could result in a fit finding, and that if the request is disapproved, the approval authority will notify the military treatment facility of the USAPDA. f. Paragraph 6-10 states the fact that a Soldier has or has not applied for COAD will not influence the determination of fitness or percentage of the disability rating. ABCMR Record of Proceedings (cont) AR20190005042 5 1