IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130010946 


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, that her record be corrected to show she retired based on sufficient length of service for retirement.

2.  The applicant states she completed more than 19 years of active service.  She had requested continuation on active duty (COAD) to complete the remaining 10 months in order to have 20 years of active service.  At the time she signed the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) her time was accountable.  Due to the change in the law after signing and before she was retired, the time was no longer countable. 

3.  The applicant provides a Defense Finance and Accounting Service (DFAS) Retiree Account Statement.

CONSIDERATION OF EVIDENCE:

1.  On 31 May 1989, she enlisted in the Regular Army (RA).  On 11 October 1996, she was released from active duty for completion of required active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she had completed 7 years, 4 months, and 11 days of active service.

2.  On 6 June 2000, the applicant again enlisted in the RA.  She continuously served through reenlistments until she retired for disability.

3.  On 10 November 2011, a PEB convened to consider the applicant's case.  The PEB found she was physically unfit to satisfactorily perform duties required of a Soldier of her rank and primary specialty of 92Y2 (Unit Supply Specialist).  The PEB recommended her retirement with a combined 70 percent disability rating due to bundle disease, status post pacemaker placement and degenerative disc disease lumbar spine.  The applicant concurred and waived a formal hearing of her case.

4.  On 26 February 2012, she retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for disability, permanent (enhanced).  Her DD Form 214 for this period of service shows she had completed a total of 19 years, 1 month, and 2 days total active service.

5.  Pertinent portions of the applicant's DD Form 214 show in:

* item 23 (Type of Separation) – RETIREMENT
* item 25 (Separation Authority) – "AR 635-40, CHAP 4"
* item 26 (Separation Code) – SEJ
* item 27 (Reentry Code) – 4
* item 28 (Narrative Reason for Separation) – DISABILITY, PERMANENT (ENHANCED)

6.  Department of the Army, U.S. Army Installation Management Command Orders 343-1004, dated 9 December 2011, placed her on the retired list effective 27 February 2012, in the retired rank of staff sergeant with a 70 percent disability rating. 

7.  There is no evidence showing she requested COAD during the Medical Evaluation Board (MEB) proceedings prior to her retirement.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states that under the provisions of Title 10 U.S. Code (10 USC), section 3914, a Soldier who has completed 20 but less than 30 years of active Federal service in the U.S. Armed Forces may be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.  Paragraph 12-14 states that no Soldier is retired, for length of service, who has not completed at least 20 years of active Federal service that is creditable for retirement. 

9.  Army Regulation 635-40 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 or her office, grade, rank, or rating.

	a.  As set forth in chapter 6 of this regulation, a Soldier determined unfit due to physical disability by the PDES may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitations.

	b.  It further prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD as an exception to policy.  (This provision is referred to as "permanent limited duty.")  It prescribes in pertinent part that upon a recommendation the Secretary of the Army may determine that an unfit service member's service obligation, skill, or experience justifies the continuance of that service member on active duty in a permanent limited duty status, resulting in the service member being retained as an exception to the general policy rule.

	c.  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.  Normally, a 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 10 USC, Section 3911 or 3914.

   e.  To be considered for COAD, a Soldier must be—
   
      (1) 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.

      (2) 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 Soldier or the Army.  

      (3) Physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable.

   (4) Eligible under one or more of the criteria listed below:


   (a) For COAD, have 15 but less than 20 years of active Federal service.
   
      (b) Qualified in a critical skill or shortage MOS.  Such qualification must be confirmed in writing by the applicable personnel office and attached to the request; or

   	(5) The application must be forwarded with either the MEB packet or with the Soldier’s election to the informal findings within the prescribed election time frame. 

10.  Army Regulation 635-40 further provides that a Soldier may not be retained solely to increase retirement or separation benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is insufficient evidence to support granting her request.

2.  The PEB found she was physically unfit to satisfactorily perform duties required of a Soldier of her rank and primary specialty.  The PEB recommended her retirement with a combined 70 percent disability rating due to bundle disease, status post pacemaker placement and degenerative disc disease lumbar spine.  She concurred and waived a formal hearing of her case.

3.  It is unknown what the applicant meant with regard to her statement that at the time she signed the DA Form 199 her time was accountable and then due to the change in the law after signing and before she was retired, the time was no longer countable.  Further, it is unclear whether she requested COAD.  However, even if she did, regulatory policy states that a Soldier determined unfit due to physical disability by the PDES may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitations.  Further, the primary objective of this program is to conserve manpower by effective use of needed skills or experience.  Based on the severity of her diagnosed disabilities it is unlikely that she could have adequately performed duties in her primary specialty in a manner that would have warranted approval for COAD for the nearly 11 additional months needed to qualify for a length of service retirement.  Moreover, a Soldier who is physically unqualified for further military service has no inherent or vested right to continuation.


4.  The evidence of record confirms the applicant was properly processed through the PDES in accordance with the applicable laws and regulations.  Her case was properly considered by a PEB and she concurred with the findings.

5.  She did not complete 20 years of service which is the required length of service for a length of service retirement.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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)                                         AR20130010946



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ABCMR Record of Proceedings (cont)                                         AR20130010946



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