IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20110001781 


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 her record be corrected to credit her with 20 years of active military service.

2.  The applicant states she never had the opportunity to apply for continuation on active duty (COAD) prior to her disability retirement.  She claims the Physical Evaluation Board (PEB) Liaison Officer (PEBLO) failed to counsel her regarding her options, including COAD.  She claims a statement confirming she had been counseled and declined COAD was never submitted with her PEB packet and the DA Form 5893 (Soldier's Medical Evaluation Board (MEB)/PEB Counseling Checklist) was started, but was never completed by the PEBLO.  She states when she asked about COAD 14 months later, she was informed she had been counseled on the program; however, a counseling form confirming this was not produced.

3.  The applicant further states that upon the return of her PEB findings in February 2010, she concurred with the findings due to her high risk pregnancy.  She claims she did not have the strength physically or emotionally to appeal the findings.  She claims she was not counseled on COAD or any other options by the PEBLO.  She claims she accepted her 60-percent disability rating and signed the paper, never having any knowledge of the COAD option.  As result, she left active duty 8 months short of 20 years, with 19 years, 3 months, and 22 days of active military service.



4.  The applicant provides the following documents in support of her application:

* DA Form 5893
* DA Form 199 (PEB Proceedings)
* Army Regulation 635-40 (Evaluation for Retention, Retirement, or Separation) extract

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows a PEB determined the applicant was physically unfit for further service and recommended she be placed on the Temporary Disability Retired List (TDRL) with a combined disability rating of 60 percent on 20 January 2010.

2.  The applicant's record contains a Warrior Out-Processing Record Checklist completed in February 2010.  This document shows the applicant confirmed a memorandum regarding the applicant's status had been obtained as of 9 February 2010.

3.  The applicant's record is void of any record of COAD counseling by the PEBLO or a COAD declination statement from the applicant.  It also contains no documents or records related to direct counseling by the PEBLO.

4.  On 29 April 2010, the applicant was retired under the provisions of paragraph 4-24b, Army Regulation 635-40, by reason of temporary disability and was placed on the TDRL.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued at the time shows she held the rank of sergeant first class/E-7 and had completed 19 years, 3 months, and 22 days of active military service.

5.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES).  Chapter 6 prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD or in an active reserve status (COAR) as an exception to policy.

6.  Paragraph 6-6 of the PDES regulation provides guidance on referral to the PDES prior to expiration of continuation period.  It states Soldiers approved for a COAD of greater than six months will be referred to the PDES before expiration of the COAD.  Final PDES evaluation may be waived for retirement for length of service.  The Soldier must sign a waiver statement acknowledging that by foregoing final disability processing he or she is forgoing a potential disability retirement and the potential benefits related thereto (such as greater retired pay, or tax advantages, or certain benefits pertaining to employment under Federal Civil Service, depending upon the individual case circumstances). This waiver must be made a part of the Soldier's military health record. 
7.  Paragraph 6-7 of Army Regulation 635-40 provides guidance on qualification and processing for COAD/COAR.  It states to be considered for COAD/COAR, a Soldier must meet the following criteria:

	a.  be determined unfit by the PDES for a disability that was not the result of intentional misconduct or willful neglect, nor incurred during a period of unauthorized absence;

	b.  be basically stable or have a disability that is of slow progression according to accepted by medical principles.  It must not be harmful 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; and

	c.  be physically capable of performing useful duty in a military occupational specialty for which currently qualified or be potentially trainable (to include reclassification).

8.  Paragraph 6-8 of Army Regulation 635-40 outlines special counseling requirements.  It states Soldiers with 18 years of active service should be counseled on the COAD option by the PEBLO.  When the PEBLO has a case of an active Army Soldier with 18 years but less than 20 years of active service, a declination to request a COAD or COAR, as applicable, should be in writing and attached to the MEB proceeding.  If the Soldier refuses to indicate in writing his or her declination of COAD or COAR, the PEBLO will prepare and sign a statement that he or she counseled the Soldier on continuation and the Soldier declined to request continuation.

9.  Title 10, U.S. Code, section 3991 (Computation of Retired Pay), provides guidance on computing retired pay.  Paragraph (b) provides general rules for computing retired pay and subparagraph (1) provides guidance on the use of the most favorable pay formula.  It states that if a person would otherwise be entitled to retired pay computed under more than one formula, he or she is entitled to be paid under the applicable formula that is most favorable to him or her.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be credited with 20 years of active military service because she was not counseled on her option to request COAD has been carefully considered and is found to have merit.  By regulation, special counseling regarding COAD is required for Soldiers with 18 years but less than 20 years of active service.

2.  The evidence of record is void of any record that the PEBLO counseled the applicant on COAD or that the applicant declined the option to request COAD in writing.  Absent evidence showing the applicant was properly afforded the opportunity to request COAD, it appears she was improperly denied the option to be retained until completing the 20 years of active service. 

3.  In view of the facts of this case, it would be appropriate to void the applicant's 29 April 2010 retirement and transfer to the TDRL, and to correct her record to show she was approved for COAD through 31 January 2011; and to show she was then retired by reason of temporary disability and placed on the TDRL on
1 February 2011.  Further, she should be provided all back pay and allowances for the period 30 April 2010 through 31 January 2011, minus any retired pay received while on the TDRL.   

4.  The applicant should also complete her TDRL reevaluation as scheduled in order to determine her final disability rating and retirement status.  In addition, upon completion of this reevaluation, her retired pay should be recalculated accordingly.  

BOARD VOTE:

____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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding her is 29 April 2010 retirement and placement on the TDRL;

	b.  showing she was approved for COAD and continued serving on active duty through 31 January 2011, the last day of the month during which she completed 20 years of active military service;
	c.  showing she was retired by reason of temporary disability on 31 January 2011, and placed on the TDRL on 1 February 2011, and issue a new DD Form 214 reflecting this change;

	d.  provide all back active duty pay and allowances due from 30 April 2010 through 31 January 2011, minus any retired pay received during that period; 

	e.  completing her TDRL PDES reevaluation as scheduled in order to arrive at a final disability rating and retirement status as if she had been approved for COAD.




      ___________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)                                         AR20110001781



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ABCMR Record of Proceedings (cont)                                         AR20110001781



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