IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220004712 APPLICANT REQUESTS: * reconsideration of his prior request for correction of his records to show he completed 20 years of active Federal service * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * self-authored statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number on 3 August 2020. 2. The applicant states: a. He was not offered Continuance on Active Duty (COAD) and Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-29 was not followed. In support of his claim he submitted a memorandum from the director of the Fort Gordon and Eisenhower Army Medical Center’s Integrated Disability Evaluation System (IDES), outlining his concern that the applicant did not receive a sufficient review of his method of separation and a belief that his Physical Evaluation Board Liaison Officer (PEBLO) failed to counsel the applicant regarding the possibility of COAD. b. Although the DA Form 5893 (Soldier’s Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) counseling Checklist) shows the applicant signed that he was informed of and understood the criteria and procedures for requesting COAD in the even the PEB found him unfit and that his PEBLO provided and reviewed with him a sample COAD memorandum and checklist outlining the necessary documents, this did not happen. He was counseled that he had 20 years and 23 days of service and given documentation showing this by Walter Reed Army Medical Center and IDES officials, which both he and the IDES official signed, making it a contract. Since he was told he had over 20 years of service, a COAD would not be required or needed. This makes the Eisenhower Army Medical Center IDES office either incompetent or intentionally fraudulent. Although the PEBLO had training and support to ensure the calculations and paperwork were correctly filled out, it was still done incorrectly. He is not a human resources expert and is unable to train and correct a human resources manager. c. There are only two solutions to this error. Either his records need to be corrected to show he fulfilled his time required to receive his 20-year retirement for length of service, or let him fulfill his time required in order to receive his retirement. At the time of his separation, he told the IDES office he would not sign the paperwork unless he had 20 years of service. He also believes his Delayed Entry Program (DEP) time was not accounted for. 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant enlisted in the U.S. Navy on 8 November 1988 and was honorably discharged due to physical disability with severance pay on 21 August 1992. He was credited with 3 years, 9 months, and 14 days of net active service this period. He was also credited with 2 months and 8 days of total prior inactive service, which is presumed to reflect his time served in the DEP prior to his U.S. Navy enlistment. His DD Form 4 (Enlistment/Reenlistment Document) reflecting the details of his U.S. Navy enlistment is not in his available records for review. 4. A DD Form 4 shows the applicant enlisted in the Regular Amy on 22 January 2002, without a period in the DEP. 5. A DA Form 199 (Informal PEB Proceedings) shows the following: a. An informal PEB convened on 23 June 2017, where the applicant was found physically unfit and recommended a rating of 100 percent and that his disposition be placement on the Temporary Disability Retired List (TDRL) with a reexamination during March 2018. b. On 30 June 2017, the applicant acknowledged having been advised of the findings and recommendations of the IPEB and having received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. He concurred with the findings and recommendations and waived a formal hearing of his case. He did not request reconsideration of his Department of Veterans Affairs (VA) ratings. 6. A DA Form 5893, provides a 6-page checklist of MEB/PEB itemized topics the applicant was counseled on by his PEBLO on 30 June 2017. a. Item 34 shows: “I have been informed of and understand the criteria and procedures for requesting Continuance o Active Duty or Continuation in the Active Reserve (COAD/COAR) in the even the PEB finds me unfit. My PEBLO has provided and reviewed with me a sample COAD/COAR memorandum request and the latest COAD/COAR checklist outlining the necessary documents. I also understand that if I do not submit my COAD/COAR request in accordance with established timelines, the U.S. Army Physical Disability Agency (USAPDA) or U.S. Army Human Resources Command (HRC) may return with request without action or further consideration. Additionally, I understand that if HRC reviews my request for COAD/COAR and finds that I do not meet the criteria established to submit a request under COAD/COAR, they will return my request without action and I will not be retained under COAD or COAR. b. The applicant dated and initialed next to the itemized topics and also completed Section IV (Acknowledgment), signing and dating it on 30 June 2017. 7. A Physical Disability Information Report, dated 25 August 2017 (2 months after the above counseling), shows the following: * the applicant’s percentage of disability is 100 percent * his date of placement on the Retired List was to be 24 November 2017 * his disability retirement service amounted to 20 years and 23 days * this document is not signed or dated by the applicant 8. Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon Orders 249- 0901, dated 6 September 2017, show the following: * additional instructions state “IMMEDIATELY UPON RECEIPT OF THESE ORDES YOU MUST REVIEW THE WORKING COPY OF DD FORM 214.” * the applicant was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his placement on the TDRL * his effective date of retirement was 23 November 2017 * the statutes authorizing his retirement were Title 10, U.S. Code, section 1202, pertaining to TDRL, and section 1372 pertaining to retirement rank * his disability percentage was 100 percent * his basic pay computation was 19 years, 7 months, and 16 days * his disability retirement service computation was 19 years, 7 months, and 16 days 9. The applicant’s second DD Form 214 shows the following: a. The applicant entered active duty this period on 22 January 2002. b. He was retired due to disability, temporary (enhanced) on 23 November 2017 c. He completed 15 years, 10 months, and 2 days of net active service this period d. He completed 3 years, 9 months, and 14 days of total prior active service (which can also be seen on the applicant’s previously discussed DD Form 214 detailing his U.S. Navy service). e. His total prior inactive service is recorded as 000 00 00, despite the prior DD Form 214 showing 2 months and 8 days of total prior inactive service, which presumably accounted for his period in the DEP (which is inactive service) prior to Navy enlistment. f. Of note, the addition of 15 years, 10 months and 2 days active Army service, as shown on the applicant’s second DD Form 214, plus 3 years, 9 months, and 14 days of prior active Navy service, as shown on his first DD Form 214, amounts to 19 years, 7 months, and 16 days of total active Federal service. g. Also of note, the applicant was not separated with entitlement to severance pay nor was he separated without entitlement to disability benefits, negating the requirement for Secretarial review. 10. The applicant previously applied to the ABCMR in March 2018, requesting correction of his records to show he completed 20 years of active Federal service, entitling him to retirement for length of service. 11. With the submission of his prior application, the applicant submitted a memorandum from the Director, Fort Gordon and Eisenhower Army Medical Center IDES office, dated 2 March 2018, showing the following: a. The applicant’s IDES processing failed to provide him with due process. He was given a separation status of TDRL placement, when is all probability he might qualify for permanent status and with 19 years, 7 months, and 16 days of service, the applicant’s case should have received a review to determine his method of separation more effectively. b. The applicant’s Physical Disability Information Report shows he had 20 years and 20 days of creditable service toward retirement and basic pay. This piece of data led his PEBLO and the applicant to believe he was “credited” with that amount of service. c. The PEBLO never counseled the applicant to consider COAD. Had that counseling taken place, perhaps they would have been able to see what his true status was. d. The normal review of Soldiers within the 18-20 year window for retirement and requiring an honorable separation did not take place in accordance with Army Regulation 635-40, paragraph 4-29. 12. In the adjudication of his prior case, and advisory opinion was obtained from the USAPDA legal advisor on 1 April 2020, which has been provided in full to the Board for review. In pertinent part it states the applicant signed the DA Form 5893 stating he was counseled on the criteria and procedures for requesting COAD in the event the PEB found him unfit and the criteria for Secretarial review in Army Regulation 635-40, paragraph 4-29 are not applicable to this case. The applicant’s request was found to be legally insufficient and no change to the PEB determination was recommended. 13. The applicant was sent a copy of the USAPDA advisory opinion and on 17 July 2020, rebutted, stating one of the documents shows his time in service was 20 years and 20 plus days, therefore a COAD was not applicable to him. However, when he retrieved his DD Form 214 on the day of his separation, it showed less than 20 years of service. This shows the deception and subterfuge that was used in order to get him to sign that document. He was not even offered a COAD at any time. 14. On 3 August 2020, as evidenced in Docket Number the Board denied the applicant’s request, determining the evidence presented did not demonstrate the existence of a probable error or injustice. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that at the time of his placement on the TDRL, the applicant had served more than 19 years. By regulation (AR 635-40), Soldiers with between 15 and 20 years are eligible to apply for Continuation on Active Duty (COAD) to reach 20 years and a longevity retirement. He claims that he was not offered a COAD and contends his PEBLO did not counsel him. a. The Board noted that the applicant’s DA Form 5893, shows he was informed of and understood the criteria and procedures for requesting COAD in the event the PEB found him unfit. The Board also noted that the previous advisory opinion from the USAPDA indicated that after a thorough review, there was no violation of his rights and as such, a change to the PEB determination was neither supported nor warranted. b. Nevertheless, the Board determined that the applicant may not have been counseled properly regarding COAD and its impact on his pay and the financial readiness of his family. A Physical Disability Information Report, dated 25 August 2017 (2 months after the above counseling), shows his disability retirement service amounted to 20 years and 23 days. His disability retirement orders dated 6 September 2017, show his basic pay computation and his disability retirement service computation was 19 years, 7 months, and 16 days. This confusion, coupled with the stress associated with signing multiple documents during disability separation may have impacted his decision to request COAD and complete 20 years of service. The Board determined an injustice has occurred. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number on 3 August 2020. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing the applicant timely submitted a request for continuation on active duty (COAD) for 4 months and 14 days to reach 20 years of active service * showing his request for COAD was timely received, processed, and approved by the appropriate office * adjusting his disability retirement orders to show his disability, his basic pay computation and his disability retirement service computation was 20 years * adjusting his DD Form 214 ending on 23 November 2017 to show an end date he would have completed 20 years * paying him all back pay and allowances during the 4 months and 14 days of COAD, less retired pay received 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 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 Physical Evaluation Board (PEB)-appointed counsel advises the Soldier of the Informal PEB (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 (Informal Physical Evaluation Board Proceedings) 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 4-29 states Soldiers on active duty who are found unfit with 18 but less than 20 years of active service will receive a Secretarial review if the Soldier is separated with entitlement to severance pay or separated without entitlement to disability benefits. d. Paragraph 6-2 states the primary objective of the Continuation on Active Duty (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. e. 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. f. Paragraph 6-8 states before the Soldier completes an application for COAD, the Physical Evaluation Board Liaison Officer (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. g. 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. The Commander, U.S. Army Human Resources Command is the approval authority for an Regular Army officer requesting COAD. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 12 (Retirement for Length of Service) sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers. a. Paragraph 12-25 (Service creditable for retirement) states all years of active service are creditable for retirement. All service below is creditable for retirement under this chapter and is creditable for basic pay purposes: (1) Army * U.S. Army (Regular) * Women’s Army Corps * Cadet, U.S. Military Academy * Fraudulent enlistment if enlistment was not voided * Active Federal service in the following: Regular Army Reserve, Army of the United States, U.S. Army Reserve, Army National Guard, and Army National Guard of the United States (2) Navy * U.S. Navy (Regular) * Active Federal service in the U.S. Naval Reserve (3) Air Force * U.S. Air Force (Regular). * Active Federal service in the— * Air Force of the United States. * U.S. Air Force Reserve. * Air National Guard. * Air National Guard of the United States. * Aviation Cadet. * Cadet, U.S. Air Force Academy. (4) Marine Corps * Marine Corps (Regular) * Active Federal service in the U.S. Marine Corps Reserve (5) Coast Guard * U.S. Coast Guard (Regular). * Active Federal service in the U.S. Coast Guard Reserve. * Midshipman, U.S. Coast Guard Academy. (6) Public Health Service. Active Federal service as commissioned officer in the Reserve Corps of the Public Health Service. (7) Minority service. All service performed under an enlistment or induction entered into before reaching the age prescribed by law for that enlistment or induction when such service is otherwise creditable. b. Paragraph 12-26 (Periods not creditable for retirement) states the following periods are not creditable for retirement under this chapter: (1) All time required to be made good (see 10 USC 972). (See paragraph 1–21.) (2) Periods of service voided by the Government other than those voided because of minority. (3) Time in a non-pay (non-casualty) status under 37 USC 552(C). (4) Service in a Reserve Component not on the following: * Active duty * Active duty for training * Other full-time training duty 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004712 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1