IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100019721 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of the continuation of active duty (COAD) waiver from his record so that he may be eligible to reenter the military and complete 20 years of active Federal service for the purpose of qualifying for a length of service retirement.

2.  He states he received erroneous counseling from his Medical Evaluation Board (MEB) counselor.  As a result of this bad counseling, knowing he only had a few months remaining in the Army to receive a full 20 year retirement, he has suffered a severe financial and mental strain.  He served proudly and feels so discouraged that he was treated and counseled so irresponsibly.  His decision was based purely on the information he received from his counselor.  He would gladly return to the Army as a reservist or to the Warrior Transition Unit in San Antonio to serve the remaining months.  

3.  He provides:

* His COAD request
* Physical Evaluation Board (PEB) Proceedings
* A waiver of COAD
* July and September 2008 reassignment orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Calculation of Injustice
* A letter to his Member of Congress


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's separation be changed to allow him the opportunity to complete 20 years towards retirement.

2.  Counsel states they rest their case accordingly on the evidence of record.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Regular Army in pay grade E-4 on 27 February 1996, for 3 years.  He completed training and was awarded military occupational specialty (MOS) 14E, Patriot Fire Control Operator.  He reenlisted in the Regular Army on 20 May 1999, 30 November 2004, and 27 April 2007.

2.  On 12 March 2008, he submitted a request to his command for a COAD and assignment to duties he would be able to perform within the limitation of his physical disabilities.  He acknowledged that he had 15 years, but less than 20 years of active Federal service.  He also acknowledged he understood that if he continued for a period of greater than 6 months, he would be referred to the PDES before the expiration of his COAD, unless he was eligible for length of service retirement and executed a written waiver for final referral.  

3.  On 6 June 2008, an informal PEB convened and considered the applicant's disabilities of chronic neck pain, back pain from myofascial pain syndrome, and bilateral osteoarthritis in the first metatarsophalangea (MTP) joints.  Based on a review of the medical evidence of record, the PEB concluded that his medical condition prevented satisfactory performance of duty in his grade and MOS.  The PEB recommended permanent retirement with a combined 30 percent disability rating.  The PEB noted the applicant had requested a COAD under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 6.  The PEB stated the recommended disposition applied if his application for continuance was denied.

4.  On 30 June 2008, after consulting with counsel, he concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.  

5.  On 30 June 2008, he requested a waiver of the COAD.  He acknowledged that he had been advised of his rights by a PEB Liaison Officer (PEBLO); however, he wanted to waive the COAD.  
6.  Orders 193-002 were issued by the Installation Management Command -Europe on 10 July 2008 releasing him from his assignment and retiring him with an effective date of 1 October 2008 because of physical disability.  These orders were rescinded on 10 September 2008.

7.  Orders 254-003 were issued by the Installation Management Command -Europe on 10 September 2008 releasing him from assignment and retiring him with an effective date of 1 October 2008 because of physical disability.

8.  He was honorably retired, in pay grade E-6, on 1 October 2008, under the provisions of Army Regulation 635-40, paragraph 4-24b(1), for permanent physical disability retirement.  He was credited with completing 12 years,             7 months, and 5 days of net active service this period.  He was also credited with 6 years, 11 months, and 8 days of prior active service which equals a total amount of 19 years, 6 months, and 13 days of total active service.  He also had 8 years, 3 months, and 19 days of prior inactive service.

9.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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.  Paragraph 4-24b(1) stated that upon final decision of the U.S. Army Physical Disability Agency (USAPDA), an individual will be issued retirement orders or other disposition instructions for permanent retirement for disability. 

10.  Army Regulation 635-40, chapter 6, prescribes the criteria and procedures under which Soldiers who have been determined unfit by the Physical Disability Evaluation System (PDES) may be COAD or in active reserve status as an exception to policy.  To be eligible for COAD the Soldier must have 15 but less than 20 years of active Federal service.  Continuation in a military status is generally subject to the Soldier's consent.  Paragraph 6-4 states normally a COAD period 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 the purpose of qualifying for length of service retirement.  Normally, a Soldier who was COAD to the applicable 20-year period and who is found unfit upon referral to the PDES will not be approved for another period of continuation.  

11.  Army Regulation 635-40, paragraph 6-6a, states generally, a Soldier approved for a COAD of greater than 6 months will be referred to the PDES.  Final PDES evaluation may be waived for retirement for length of service.  Paragraph 6-6b, states generally, a Soldier approved for a COAD for 6 months or less to attain eligibility for active service retirement will not be referred to the PDES.  The Soldier will be retired for physical disability upon expiration of COAD. If the disability has remained unchanged or increased in severity, the PEB will find the Soldier unfit because of physical disability.  Paragraph 6-8 states before the completion of an application for COAD the Soldier will receive counseling from a PEBLO throughout the physical disability processing.  

12.  Title 10, U.S. Code, section 1201(c), states an individual who has at least 20 years of AFS and who is unfit to perform the duties of his/her office, grade, rank, or rating because of physical disability of at least 30 percent may be retired with his/her retired pay computed under section 1401 of this title.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows on 12 March 2008 the applicant requested a COAD and acknowledged he had 15 years, but less than 20 years of active Federal service.  On 6 June 2008, he was found physically unfit and the PEB recommended permanent retirement with a combined disability rating of 30 percent.  The PEB noted that he had requested a COAD and stated the recommended disposition applied if the applicant's COAD application for continuance was denied.  

2.  The evidence of record also shows he concurred with the findings and recommendation of the PEB.  On 30 June 2008, he requested a waiver of his COAD.  He was retired on 1 October 2008 for permanent physical disability retirement.  He was credited with completing 19 years, 6 months, and 13 days of active Federal service.

3.  He contends that he was erroneously advised when he submitted his waiver of the COAD and as a result he was unable to attain 20 years of active Federal service for the purpose of qualifying for length of service retirement.

4.  At the time of his COAD waiver request, he acknowledged he had been properly advised of his rights; however, he wanted to waive the COAD.  Normally, the COAD period will be up to the last day of the month in which the Soldier attains 20 years of active Federal service for the purpose of qualifying for length of service retirement.  With the COAD he would have been retained to complete 20 years of active Federal service; however, he chose to waive it and be permanently retired prior to completing the 20 years.

5.  There is also no evidence in the available record and neither the applicant nor counsel has provided sufficient evidence to show the applicant was erroneously counseled when he requested a waiver of his COAD.  They have also failed to show the applicant was improperly discharged for permanent disability and thus was unable to complete 20 years active Federal service.  Upon detection of his medical conditions, the applicant was approved for a COAD and he underwent the appropriate medical processing.  He was found unfit and recommended for permanent disability retirement.  He requested a waiver of his COAD and he was subsequently retired for permanent disability.  There is no evidence to support either the applicant's contentions or that of his counsel.  There is also no evidence of error or injustice related to his physical evaluation processing or his permanent disability retirement separation.

6.  In view of the foregoing, there is no basis for granting his request.

BOARD VOTE:

________  ________  ________  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 that 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.

ABCMR Record of Proceedings (cont)                                         AR20100019721



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ABCMR Record of Proceedings (cont)                                         AR20100019721



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