IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012 

		DOCKET NUMBER:  AR20120010278 


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 reconsideration of her earlier request to be credited with 20 years of active military service based on selection for continuation on active duty (COAD)/continuation on active Reserve (COAR) during her processing through the Physical Disability Evaluation System (PDES).  

2.  The applicant states she was not properly out-processed and was never offered the opportunity to request COAD.  

3.  The applicant provides the following documents in support of her request:

* Self-Authored Statement
* Physical Evaluation Board Liaison Officer (PEBLO) Statement
* DA Form 5893 (Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) Counseling Checklist)

CONSIDERATION OF EVIDENCE:

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 AR20110009536, on 1 November 2011.  


2.  During the original processing of the case, the Board determined the applicant was counseled and concurred with the PEB findings and recommendations and waived her right to a formal hearing of her case.  It also concluded that the fact the counseling checklist she submitted was incomplete does not invalidate her PEB findings and recommendations.  Additionally, the Board noted the applicant initialed the block of the checklist indicating she had been counseled regarding the criteria and procedures for requesting COAD/COAR on 2 September 2009, her PEB did not convene until May 2010, and she was not retired until more than a year later in October 2010, which gave her more than sufficient time to inquire and submit a request for COAD/COAR if she had intended to do so.  The Board finally concluded that the applicant did not complete 20 years of service and it would not be appropriate to correct her records to show she did so.  

3.  The applicant provides a statement from her PEBLO as new evidence in support of her reconsideration request.  The PEBLO states he did not formally counsel the applicant individually on COAD/COAR as is required by regulation.  He states the applicant simply initialed the block regarding COAD/COAR on the DA Form 5893 because she was instructed to do so by the individual conducting the briefing without the presence of her PEBLO.  

4.  The applicant enlisted in the Regular Army on 12 May 1988 and served continuously through reenlistments for 6 years, 2 months, and 9 days until 
20 July 1994, at which time she was separated by reason of having completed her required service.  Prior to her discharge from the Regular Army, she enlisted in the U. S. Army Reserve (USAR), on 14 March 1994.  On 17 May 1998, she entered active duty in the Active Guard Reserve (AGR) program and served in a variety of stateside and overseas assignments.  

5.  On 2 September 2008, the applicant underwent counseling pertaining to physical disability evaluation system (PDES) processing.  The counseling checklist completed on this counseling form is incomplete and unsigned.  It does contain the applicant's initials in the block regarding COAD counseling.  

6.  On 20 May 2010, an informal PEB convened at Walter Reed Army Medical Center and found the applicant's conditions prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to various conditions and assigned a combined disability rating of 80 percent and recommended permanent disability retirement:

   a. Post-traumatic stress disorder, major depressive and obsessive compulsive disorders (not a battle injury).  She chronically exhibited ongoing 


flashbacks, anxious arousal, and attempted avoidance of physical and psychological triggers, diminished concentration, depression and mild dissociative symptomatology.  The conditions resulted in an interruption of her military duties compromising her ability to function independently, appropriately and effectively which result in poor productivity for the administrative and supervisory responsibilities in a noncommissioned officer of her rank and position.  Rated at 50 percent.

b. Migraine headaches.  Rated at 30 percent.

c. Degenerative arthritis of the thoracolumbar spine.  Rated at 20 percent.

d. Degenerative arthritis of the cervical spine.  Rated at 20 percent.

7.  On 11 October 2010, the applicant was honorably retired, in the grade of SFC/E-7, after completing19 years, 3 months, and 28 days of active military service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was separated under the provisions of paragraph 4-24b(1), Army Regulation 635-40, by reason of disability, permanent.

8.  Army Regulation 635-40 establishes the Army PDES.  Chapter 6 prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD or COAR as an exception to policy.  The Soldier must 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 the Soldier must be physically capable of performing useful duty in a military occupational specialty for which currently qualified or be potentially trainable (to include reclassification).

	a.  Chapter 3 (Policies), paragraph 3-6, shows that providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission.  The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

	b.  Chapter 6 shows in:

	 	(1)  paragraph 6-2 that the primary objective of this 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;

		(2)  paragraph 6-3 that COAD applies to officers on the active duty list, Regular Army enlisted Soldiers, and Soldiers in the AGR requesting continuation as AGR;

		(3)  paragraph 6-6 that 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 foregoing a potential disability retirement and the potential benefits related thereto (such as greater retired pay, or tax advantages, or certain other benefits pertaining); and

		(4)  paragraph 6-7 that to be considered for COAR, a Soldier must be basically stable or have a disability that is of slow progression according to accepted medical principles.  It must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Solder or the Army.  For example, the Soldier must be physically capable of performing useful duty in a military environment without the environment adversely affecting his/her health and the disability must not require undue loss of time from duty for medical treatment.

9.  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/COAR 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.

10.  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 reconsideration request that her record be corrected to show 20 years of active duty service under COAD has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  Although the regulation recommends anyone with more than 18 years of service be counseled regarding COAD/COAR by the PEBLO and that any declination be in writing, this does not alter the fact there is no evidence of record or independent evidence provided by the applicant that would call into question the Board's original conclusion that the applicant had more than sufficient time to pursue counseling and to request COAD/COAR between the time of her initial briefing on 2 September 2009, the PEB decision of May 2010, and her separation for disability retirement in October 2010.  

3.  Further, given she concurred with the findings and recommendation of the PEB which included disability retirement coupled with the lack of evidence that she wished or pursued a COAD/COAR option at anytime during her disability processing prior to her retirement, there is an insufficient evidentiary basis to support amendment of the original Board decision or to credit her with active duty service she did not actually perform. 

4.  More importantly, given the description of her PTSD symptoms, which it appears the applicant did not contest, the preponderance of the evidence shows that the applicant did not meet the regulatory criteria for COAD. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20110009536, dated 1 November 2011.  



      _______ _   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)                                         AR20120010278



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ABCMR Record of Proceedings (cont)                                         AR20120010278



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