IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20220005804 APPLICANT REQUESTS: credit for 20 years of active duty service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) online application * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states, in effect: a. He was medically retired with 19 years, 7 months, and 6 days without the opportunity to complete 20 years of service. He is requesting credit for 20 years of service. b. While he was serving as a Company First Sergeant (1SG), a medical evaluation board was initiated for several service connected injuries. During this time, two other 1SGs in his unit submitted retirement applications and several inbound 1SGs' orders were cancelled. c. This created a very toxic climate from the battalion leadership with the company command teams. He verbally requested a Continuation of Active Duty (COAD) in order to meet the 20-year retirement criteria and was met with extreme resistance. d. He was told that such a request would be denied. By him asking this, the battalion commander attempted to speed up the medical board process by submitting a fit for duty evaluation even though he was already in that process. e. He served faithfully and honorably for 19 years, 7 months, and 6 days before being forced to retire. 2. The applicant's service records contain the following documents for the Board's consideration: a. On 3 May 2000, the applicant enlisted in the Regular Army and continued service through reenlistments. b. DA Form 199, dated 4 September 2019, shows the PEB found the applicant physically unfit for duty and recommended a disability rating of 70 percent and that he be placed on the Temporary Disability Retired List (TDRL) with a re-examination in March 2020. c. Orders Number 266-0152, published by Headquarters, U.S. Army Garrison Command, Fort Knox, dated 23 September 2019, retired/separated the applicant from active duty, effective 8 December 2019. He was placed on the TDRL on 9 December 2019. d. DD Form 214 shows he was retired on 8 December 2019 and placed in the U.S. Army Reserve Control Group (Retired). He completed 19 years, 7 months, and 6 days of active duty service. He was retired for disability, temporary (enhanced). e. DA Form 199 dated 28 December 2021 shows the board found him physically unfit for duty and recommended an 80 percent disability rating and he be permanently retired for disability. He concurred with the findings and waived a formal hearing. f. Orders Number D021-13, published by Headquarters, U.S. Army Physical Disability Agency (USAPDA), dated 21 January 2022, show the applicant was removed from the TDRL on 21 January 2022 and was permanently retired. 3. On 9 September 2022, the Legal Advisor from Headquarters, USAPDA provided a legal advisory for the Board's consideration, which states: a. The memorandum responds to the applicant's request to be credited with 4 months and 26 days of active-duty time so that he can achieve 20 years of active federal service. They found the request to be legally insufficient. b. The applicant was found unfit for duty for three conditions. He was, ultimately placed on permanent disability retirement with a combined rating of 70 percent. In addition, he was awarded a combat code for each condition. The applicant accepted the findings and did not appeal. c. According to his DD Form 214 he had 19 years 7 months, and 6 days of active federal service, at the time of his retirement. d. The applicant stated he verbally requested a COAD in order to meet the 20-year retirement criteria and was met with extreme resistance. A review of his ePEB case file did not reveal that a COAD was requested. He did not provide a written COAD packet or any other evidence other than his own assertion that he had requested a COAD. e. The USPDA does not approve/disapprove COAD requests that are processed and approved/disapproved by the U.S. Army Human Resources Command (HRC). This appeal is best served by having HRC's COAD program review the matter. 4. On 16 September 2022, HRC, Chief, Operations Management Division, provided an advisory opinion for the Board's consideration, which states in effect: a. After a thorough review of the applicant's records, they determined the Soldier did not apply for the COAD program prior to separation and was aware of the requirements for the request. No relief is appropriate. b. As part of the medical separation process, the applicant initialed his DA Form 5893 (Soldier's Medical Evaluation Board/PEB Counseling Checklist). He acknowledged he had been informed and understood the criteria and procedures for requesting a COAD. The checklist is available for the Board's review. c. There is no regulatory guidance to support the applicant's request for COAD. 5. On 23 September 2022, the advisory opinions were provided to the applicant to allow him an opportunity to respond. He did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the advisory officials that the evidence shows the applicant was aware of the requirements for requesting COAD and did not submit a request prior to his retirement. Based on a preponderance of the evidence, the Board determined the applicant’s retirement prior to completing 20 years of active duty service was not in error or unjust. 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. REFERENCES: 1. 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. c. Chapter 6 (Continuance of Disabled Personnel on Active Duty (COAD)) paragraph 6-3 (Qualification for continuance) states 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 Military Occupational Specialty (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 d. 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 MEB 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 counseled and elects not to submit an election in writing. 2. Title 10, United States Code, chapter 741, section 7314 states (Twenty to thirty years enlisted members) under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 7325 of this title may, upon his request, be retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005804 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1