BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20120019528 


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 credit for 20 years of qualifying service for a non-regular retirement.

2.  The applicant states that at the time of his medical discharge, he was not given the opportunity to be placed on COAD (Continuation on Active Duty) status.  He contends that he should have been extended for three months in order to complete 20 years of service.  He adds that he is making this request in order to obtain benefits. 

3.  The applicant provides a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 8 February 1980.  He completed initial active duty for training and he was awarded military occupational specialty (MOS) 19E (Armor Crewman).  After serving in the ARNG and U.S. Army Reserve, he reenlisted in the ARNG on 27 April 2004.

2.  On 21 November 2005, he was mobilized in support of Operation Iraqi Freedom (OIF) as a member of the Kentucky ARNG.  Upon his return from OIF, he was retained on active duty for the purpose of completion of medical care and treatment.  

3.  On 11 January 2008, he underwent Physical Evaluation Board (PEB) proceedings.  The PEB found him physically unfit due to a number of medical issues and recommended his placement of the Temporary Disability Retired List (TDRL).  The PEB indicated his medical issues prevented him from performing his duties in MOS 19K (M-1 Armor Crewman).  The PEB also indicated he was unable to perform basic Soldier functions.  He was placed on the TDRL effective 22 February 2008.

4.  On 13 December 2011, a second PEB found him physically unfit with a combined rating of 50 percent and recommended his permanent retirement due to disability.  

5.  On 10 January 2012, he was removed from the TDRL and permanently retired due to physical disability.  His NGB Form 22 and ARNG Retirement Points History Statement show he completed 19 years and 9 months of creditable service for retired pay.

6.  The applicant’s statement of retirement points shows he earned 27 retirement points during retirement year ending (RYE) 7 February 1990; 38 points during RYE 7 February 1991; 15 points during RYE 25 May 2001; 15 points during RYE 25 May 2002; 15 points during RYE 25 May 2003; and 20 points during RYE     25 May 2004.

7.  An advisory opinion was obtained from the NGB, Personnel Policy Division.  This office indicated the following. 

	a.  At the time the applicant was transferred to the USAR for the purpose of being placed on the TDRL, he had 19 years and 9 months of creditable service.  This service has been validated by his Army National Guard Retirement Points History Statement.  

	b.  Many of the points the applicant earned during his service were due to completion of Army correspondence courses.  The points granted for the completion of the courses can be realigned in order to grant him credit for full years of service.  The realignment of the points will allow for the issuance of a 20-year Notification of Eligibility for Retired Pay at age 60 letter (20-year letter).  

	c.  While the applicant already has a 15-year letter, the 20-year letter will make him eligible for concurrent retirement and disability pay (CRDP).  CRDP allows a retiree with 50 percent or greater disability from the Department of Veterans Affairs (VA) to receive both their military retired pay and their VA disability pay at the same time.  If the Soldier does not have a 20-year letter, the VA disability pay would be offset from the military retired pay.  
	d.  The KYARNG agrees with their recommendation.  

8.  The advisory opinion was provided to the applicant to afford him the opportunity to reply to its contents.  He replied and expressed his agreement with the advisory opinion.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Chapter 3 (Policies), paragraph 3-6, indicates 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 (Continuation on Active Duty and Continuation on Active Reserve Status of Unfit Soldiers) 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 (COAR) as an exception to policy.  

	c.  Paragraph 6-2 (Objective) states 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.

	d.  Paragraph 6-7 (Qualification and process for continuation on active duty and continuation on active Reserve status) provides that to be considered for COAD or COAR, a Soldier must be:

		(1) determined unfit by the PDES because of a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence;

		(2)  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; and
   
   (3)  physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable.
   
10.  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 either active duty or qualifying years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be granted credit for 20 years of service because he was not given the opportunity to be placed on COAD.  

2.  Evidence shows he was found unfit for further military service by a PEB.  Additionally, the PEB clearly indicated he was unable to perform basic Soldier duties.  The governing regulation provides that to be considered for COAD or COAR, a Soldier must be physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable.  Therefore, based on his medical conditions, it appears he did not qualify for COAD/COAR and that he was properly retired based on physical disabilities.  

3.  In addition, the governing regulation provides that Soldiers may not be retained solely to increase retirement or separation benefits.

4.  The NGB recommends realignment of the applicant's points to show 20 years of service in order to make him eligible for CRDP.  This is an insufficient equity basis on which to grant the requested correction.  The applicant’s statement of retirement points would have shown him how close he was to obtaining his 20 years of qualifying service for a nonregular retirement.  He completed his 18th year during RYE 25 May 2000, yet for the next four retirement years he earned little more than membership points, leaving himself open to having fate intervene, as it did, before he could complete his 20th year.  

5.  Based on the foregoing, it is concluded the applicant was properly removed from the TDRL and permanently retired with less than 20 years of qualifying service for retired pay.  

6.  The applicant failed to provide evidence showing error or injustice during the processing of his retirement for physical disability.  As a result, there is no basis to grant the requested relief.  

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)                                         AR20120019528



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ABCMR Record of Proceedings (cont)                                         AR20120019528



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