IN THE CASE OF: BOARD DATE: 21 March 2023 DOCKET NUMBER: AR20220002520 APPLICANT REQUESTS: in effect - * reinstatement and Continuation in the Active Reserve (COAR) for the completion of 20 years of service * retroactive Concurrent Retirement and Disability Payment (CRDP) based on his permanent disability and early qualification for retired pay APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149, Application for Correction of Military Record * ARNG Information Guide on Non-Regular Retirement, 15 April 2009 * CRDP-Non-Regular Pay-Summary Statement * Notification of Eligibility for Retired Pay for Non-Regular Service (15-Years), 7 May 2014 * Army National Guard (ARNG) Retirement Points History Statement, 7 May 2014 * Orders 128-002, 8 May 2014 * Defense Finance and Accounting Service (DFAS) memorandum, 16 September 2020 * ARNG current Annual Statement, 29 April 2021 * DD Form 214, Certificate of Release or Discharge from Active Duty, 27 March 2014 * DD Form 215, Correction to DD Form 214, 9 July 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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, in effect: a. He was injured (a protruding disc) in March 2009 while serving in Kuwait. Subsequently, he was placed in the Wounded Warrior Program from 20 July 2010 to 27 March 2014. After having a failed surgery to repair his injury, he was slotted to be medically retired. However, because he was only five months short of reaching 20 years of service, he requested an extension so he would be eligible for CRDP. He contends that he was instructed to seek assistance from his congressional representative and his personnel office (G-1). Both stated that he could be provided a 15-Year Letter and that this letter was the same as the 20-Year Letter; therefore, not necessary for him to stay on duty. b. He was later informed that it would be better if he received the 20-Year Letter. He then followed up with the G-1 office. The applicant contends that his COAR request had been approved after he had already separated. He was also informed that the G-1 lacked the authority to bring him back on duty. He was never notified of whether his approval for COAR had included a unit of assignment. He further contends that due to the delayed receipt of his COAR approval, miscommunications, and misinformation he was not able to remain in service to complete his 20 qualifying years on 31 October 2014. c. He received the 15-Year Letter after he was separated, and he was not authorized to request retirement until he reached age 60 at a reduced age and that process started in July 2020. On 29 December 2021, the U.S. Army Human Resources Command (AHRC) Grey Area Supervisor informed him that they could not pay him because the 15-Year Letter was not the same as the 20-Year letter, and that he would have to appeal to the Army Board for Correction of Military Records. 3. A review of the applicant's record shows: a. The applicant was born on. He had prior active service from 23 August 1979 to 26 February 1990. He also had prior Reserve service. b. After a short break, the applicant enlisted in the New Jersey ARNG (NJARNG) on 1 November 2005. He transferred to the Hawaii ARNG (HIARNG) on 20 September 2006. He held military occupational specialty 88M, Motor Transport Operator. c. He entered active duty as a member of the ARNG on 20 July 2010. He served on Title 10 orders in support of the transition medical retention processing program for Reserve Component Soldiers. d. During 2012/2013, the applicant entered the disability evaluation system. His medical evaluation board proceeding is not available for review. However, his condition of L4-L5 post laminectomy syndrome failed retention standards, whereas other medical conditions met retention standards. He was referred to a physical evaluation board (PEB). e. His case was adjudicated as part of IDES under the 19 December 2011 Policy and Procedure Directive Type Memorandum 11-015. the specific VASRD (VA Schedule of Rating Disabilities) codes to describe his condition and disability percentage was determined by the Department of Veterans Affairs (VA) and is documented in VA memorandum, dated 10 July 2013. The disposition recommendation is determined by the PEB based on the VA disability rating. f. On 20 August 2013, an informal PEB found the applicant's L4-L5 post laminectomy syndrome was physically unfitting. The onset of this condition started approximately March 2011 following several surgeries following a lifting strain while deployed to Kuwait in 2009. The applicant had difficulty in ambulation and performing task required of his MOS as an 88M, motor transport operator. The applicant was found unfit due to his inability to evade direct and indirect fire and other functional activities. The PEB recommend a disability rating of 40-percent and that the applicant be permanently retired due to disability. * The applicant did not concur with the PEB findings and recommendation. He indicated that his written appeal is not attached and that he wanted a personal appearance with a regularly appointed counsel * The applicant marked “I do not request reconsideration of my VA rating g. The U.S. Army Physical Disability Agency approve the PEB findings and recommendation on 10 October 2013. h. On 15 October 2013, the applicant applied for COAR. However, on 8 November 2013, The Adjutant General, State of Hawaii disapproved his request after he determine the applicant did not meet the eligibility criteria. The Adjutant General listed the following reasons for the disapproval: * The Soldier is not qualified for a critical skill or shortage MOS * The Soldier’s physical profile prohibits him from performing his MOS f 88M and basic Soldier tasks without posing a risk to the health and safety of other Soldiers * The Soldier is unable to live in an austere environment without worsening his medical condition i. Orders 029-0024, published by the U.S. Army Garrison-Hawaii, 29 January 2014, released the applicant from assignment and duty because of physical disability with an effective date of retirement of 27 March 2014. j. The applicant was retired from active duty on 14 March 2013, and he was placed on the retired list on 28 March2 014. His DD Form 214 shows he completed 3 years, 8 months, and 8 days of active service with 12 years, 1 month, and 17 days of active service, for a total of 15 years, 9 months, and 25 days of active service. k. On 7 May 2014, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter), based on his completion of at least 15, but less than 20 years of qualifying service on or after 1 October 1991. He was required to make application for retired pay at age 60 unless he qualified for a reduced eligibility age. 4. The applicant provides his ARNG Current Annual Statement, 7 May 2014, which shows he completed 19 years, 2 months, and 26 days of creditable service for retired pay, at age 60. 5. Orders 128-002, issued by the Office of the Adjutant General, Honolulu, HI on 8 May 2014 discharged the applicant from the ARNG, by reason of early qualification for retired pay (involuntary separation). These orders also placed him on the permanent disability retired list (PDRL), effective 27 March 2014. 6. On 5 May 2021, the applicant was issued a NGB Form 22, National Guard Report of Separation and Record of Service, which confirms his placement on the PDRL, effective 27 March 2014, in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-36(s). 7. The applicant was issued a DD Form 215 on 9 July 2021 which shows, in part, that the following statement was added to Block 18, Remarks, of his DD Form 214 – "AUTHORITY: 10 USC 12301(H), 10 USC 1074(A) AND 10 USC 12322" 8. On 2 December 2021, the U.S. Army Human Resources Command informed the applicant's congressional representative that after a review of the applicant's record they found he had completed 19 years, 7 months, and 23 days of credible service. However, in order to qualify for CRDP, a service member must complete 20 years of qualifying credible service and have a Notification of Eligibility (20 Year Letter). The applicant was not entitled to a non-regular retirement. Therefore, he did not qualify for CRDP. 9. On 1 March 2023, the Chief, Special Actions Branch, in coordination with the ARNG Retirement Service Office (RSO), provided an advisory in this case. This official recommended disapproval of the applicant's request for CRDP and stated, in effect: a. The applicant reported that prior to his separation date he requested a COAR for 5 months to reach 20 years of service. He indicated that his request was approved on 14 April 2014 following his separation which occurred on 27 March 2014. He states that his inability to stay on COAR until 31 October 2014 was due to miscommunication and misinformation by his unit. The applicant further indicated that he received a 15-Year Letter Notification of Eligibility and was advised by State congressional officials that he would receive the same retirement benefits as if he completed 20 years of service. He also reported that following his discharge, he applied for his retirement benefits, and after over a year of waiting, he was denied early retirement payment. He requests approval of CRDP based on his permanent disability and early qualification for retired pay. b. The applicant began his career in the Regular Army where he served for over 10 years. After a civilian break he joined the NJARNG on 1 November 2005. On 23 October 2006 he transferred to the HIARNG. Then from 20 July 2010 to 23 December 2013, he served on Title 10 orders in support of the transition medical retention processing program for Reserve Component Soldiers. c. Records indicate that a COAR request was submitted for the applicant on 15 October 2013. However, the request was denied on 8 November 2013 by HIARNG Adjutant General due to him not meeting regulatory requirements. d. On 27 March 2014, he was retired due to physical disability and placed on the PDRL with an early qualification for retirement pay. The applicant was medically retired in the grade of sergeant/E-5 under the provisions of Title 10, U.S. Code, Section 1372. He received a combined disability rating of 40%. His retired pay calculation was based on a service computation of 19 years, 7 months, and 17 days for basic pay and 15 years, 9 months, and 25 days under Title 10, U.S. Code, Section 1405. The applicant received a 15-Year NOE for retired pay for non-regular service on 7 May 2014. e. Pursuant to Title 10, U.S. Code, Chapter 61, Section 1201, and Army Regulation (AR) 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 4- 24, a permanent disability disposition is directed when the Soldier is determined to be unfit for continued service and has a compensable disability; when the disability is permanent and stable, and the Soldier has a least 20 years of service or a combined disability rating of at least 30%. AR 635-40, paragraph 6-1(e) also stipulates that COAR requests are approved based on the needs of the Army. Request will not be approved solely to increase the Soldier's separation or retirement benefits. Paragraphs 6-3d(1) and (2) further outline eligibility criteria for request to be considered. As such, the Soldier must be qualified in a critical skill or shortage military occupational specialty, or his disability must have resulted from combat or terrorism. f. The applicant received a combined rating of 40% and was therefore directed for disability retirement under the provision of Section 1201. Though his intent was to obtain a COAR to reach 20 years of service, he did not meet the qualification as outlined in AR 635-40, paragraph 6-3d (1) and (2). Therefore, his COAR request was denied. Contrary his request for non-regular retirement, he does not meet time in service requirement as provided in Title 10, U.S. Code, Section 7314. Nonetheless, his disability retirement qualifies him for early retired pay. g. The ARNG Retirement Service Office (RSO) was consulted for input on this matter. That office opined that the applicant has been receiving retirement pay, and cannot be entitled to two retirement payments, meaning PDRL and non-regular retirement. The ARNG RSO also provided records of the applicant's retirement and VA benefits information. These records indicate that the applicant is indeed receiving CRDP. Soldier's monthly military disability payment reflects a total of $1,343.00 whereas his VA monthly compensation shows a total of $3,389.53. Furthermore, records indicate that Soldier's combined rating has increased to 90% and that he has been paid at the 100% rate because of his unemployability due to service-connected disabilities. h. The applicant was not qualified for a COAR and therefore could not be kept on active duty orders for the sole purpose of increasing his retirement benefits. Consequently, the applicant is not entitled to a 20-year non-regular retirement. Additionally, as stated above, there is evidence that the applicant is currently receiving CRDP. The applicant's claim is unfounded and should not be approved. 10. The advisory opinion included copies of the applicant's request for COAR, ‘dated 15 October 2013 which was denied on 8 November 2013 because he was not qualified for a critical MOS, his physical profile prevented him from performing his primary MOS duties and basic Soldier tasks, and he was unable to live in an austere environment without worsening his medical condition. The U.S. Army Physical Disability Agency notified the applicant on 3 December 2013 that his COAR request had been denied. He was instructed to report to the Transition Center within three days and that his separation orders would be distributed shortly. 11. The advisory was provided to the applicant on 3 March 2023 for comment. He did not respond. 12. The applicant provided: a. A DFAS memorandum, 16 September 2020, confirming he was on the Retired rolls and entitled to pay at the gross monthly rate of $1,343.00. b. ARNG Current Annual Statement, 29 April 2021, which shows he completed 19 years, 7 months, and 23 days of creditable service for retired pay. c. ARNG Information Guide on Non-Regular Retirement, 15 April 2009. The applicant highlighted paragraph 3-5b (Notifications of Eligibility-15 Year NOE) which outlines when a Soldier is eligible for a 15 Year NOE and states, in part – * an ARNG Soldier who receives their 15-Year NOE has the option to request discharge from the ARNG and transfer to the Retied Reserve to await eligibility for retired pay (at age 60 or reduced eligibility age) or request discharge from the ARNG and as a Reserve of the Army because they are disqualified from further service, and their 15-Year NOEs are issued only when separation orders are issued * Soldiers assigned to the Retired Reserve, but who are not yet eligible for payment of retired pay, are eligible for assignment to an active status in the Army Reserve or enlistment or appointment in the ARNG provided they were not removed from an active status for certain disqualifying reasons 13. Continuation in a military status is generally subject to the Soldier’s consent. However, the SA, or their designee, may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience. 14. Regulatory guidance states a Soldier must be physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable (to include reclassification) in order to qualify for COAR. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows, after the applicant was found unfit and rated at 40%, he requested a Continuation in the Active Reserve (COAR) thru his state. His request was denied on 8 November 2013 by The Adjutant General due to the applicant not meeting regulatory requirements. He retired on 27 March 2014, due to physical disability and placed on the PDRL with an early qualification for retirement pay. The applicant also received a 15-Year letter for retired pay for non-regular service on 7 May 2014, since he completed at least 15 but less than 20 qualifying years and he was separated for medical reasons. By regulation, COAR requests will not be approved solely to increase the Soldier's separation or retirement benefits. The applicant was not qualified for a COAR. The applicant did not complete 20 qualifying years of service, he was not qualified for a COAR, and he could not be kept on active duty orders for the sole purpose of increasing his retirement benefits. Consequently, the Board determined the applicant is not eligible for reinstatement and COAR for the completion of 20 years of service or a 20-year non-regular retirement. ? 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-40, Personnel Separations-Physical Evaluation for Retention, Retirement, or Separation, governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Continuation in a military status is generally subject to the Soldier’s consent. However, the SA, or their designee, may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience. Chapter 6 states to be considered for continuation on active Reserve status a Soldier must be - a. Determined unfit by the Physical Disability Evaluation System for a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence. b. Basically stable or have a disability that is of slow progression according to accepted by medical principles. It must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Soldier or the Army. For example, the disability must not require undue loss of time from duty for medical treatment. It must not pose a risk to the health or safety of other Soldiers. c. Physically capable of performing useful duty in a military occupational specialty (MOS) for which currently qualified or potentially trainable (to include re-classification). d. Eligible under one or more of the criteria listed below: * have a total of 15, but less than 20 years of qualifying service for nonregular retirement * qualified in a critical skill or shortage MOS, such qualification must be confirmed in writing by the applicable personnel office and attached to the request; or * disability resulted from combat or terrorism 3. Title 10, U.S. Code, Section 1414 provides for concurrent payment of retired pay and VA disability compensation for members eligible for retired pay who are also eligible for a disability rating of 50 percent or higher from VA. 4. Title 38, Combined Federal Regulation, Section 3.750 (Entitlement to Concurrent Receipt of Military Retired Pay and Disability Compensation) states in: a. Section b(1) subject to paragraphs (b)(2) and (b)(3) of this section, a veteran is entitled to military retired pay and disability compensation for a service-connected disability rated 50 percent or more. b. Section b(2) disability retired pay payable under Title 10 USC, chapter 61 (Retirees retiring with 20 or more years of service) to a veteran with 20 or more years of creditable service may be paid concurrently with disability compensation to a qualifying veteran subject to any waiver required during the phase –in period under paragraph (c)(1)(ii) and of the veterans disability retired pay exceeds the amount of retired pay. c. Except as provided in paragraph (c)(2) (Individual unemployability or rated at 100%) of this section, all veterans who are eligible to receive both military retired pay and disability compensation at the same time under paragraphs (b)(1) or (b)(2) of this section must file a waiver in order to receive the maximum allowable amount of disability compensation during the phase-in period. 5. The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase- out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50-percent or greater. This provision is referred to as CRDP. Members retired under disability provisions (Title 10, U.S. Code, Chapter 61) must have 20 years of service. 6. Combat Related Special Compensation (CRSC) and CRDP are programs created by Congress in Public Law 108-136 to allow eligible military retirees to receive monthly entitlements in addition to retired pay. The purpose of these entitlements is to recover some or all of the retired pay that military retirees waive for Department of Veterans Affairs (VA) disability compensation. 7. CRSC is a special compensation for combat-related disabilities; it is non-taxable, and retirees must apply to their Branch of Service to receive it. CRDP is a restoration of retired pay for retirees with service-connected disabilities, and it is taxable; no application is required; eligible retirees receive CRDP automatically (unless retiree has chosen CRSC over CRDP) 8. CRDP allows military retirees to receive both military retired pay and VA compensation. This was prohibited until the CRDP program began on 1 January 2004. CRDP is a "phase in" of benefits that gradually restores a retiree's VA disability offset. This means that an eligible retiree's retired pay will gradually increase each year until the phase in is complete in 2014. If qualified, a member is enrolled automatically. To be eligible for CRDP, a member must be eligible for retired pay. If the member was placed on a disability retirement but would be eligible for military retired pay in the absence of the disability, the member may be entitled to receive CRDP. Under these rules, a member may be entitled to CRDP if: a. A regular retiree with a VA disability rating of 50-percent or greater. b. A Reserve retiree with 20 qualifying years of service who has a VA disability rating of 50 percent or greater and who has reached retirement age. (In most cases the retirement age for reservists is 60, but certain Reserve retirees may be eligible before they turn 60. If a member of the Ready Reserve, retirement age can be reduced below age 60 by 3 months for each 90 days of active service performed during a fiscal year). c. Retired under the Temporary Early Retirement Act and have a VA disability rating of 50-percent or greater. d. A disability retiree who earned entitlement to retired pay under any provision of law other than solely by disability and has a VA disability rating of 50-percent or greater. The member might become eligible for CRDP at the time the member would have become eligible for retired pay. 9. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002520 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1