BOARD DATE:	  8 October 2014 

		DOCKET NUMBER:  AR20140002146 


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 crediting him with 20 years of active military service through 31 January 2014 by:

* voiding of his placement on the Temporary Disability Retired List (TDRL) effective 6 February 2012
* voiding his placement on permanent disability retirement status with a 30 percent (%) rating effective 16 July 2013
* reflecting he was approved for Continuation on Active Duty (COAD) effective 6 February 2012 through 31 January 2014
* retiring him for length of service pursuant to Title 10, U.S. Code (USC), section 3914 effective 1 February 2014

2.  The applicant states as he was being processed through the U.S. Army Physical Disability Evaluation System (PDES) he was not properly counseled on his right to request COAD and he was improperly denied the option to apply for COAD and to have the option of being retained on AD until he completed 20 years of active Federal service, all in violation of multiple provisions of Army Regulation (AR) 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation).

3.  The applicant provides no additional evidence.




COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's military records to credit him with 20 years of active Federal service, including but not limited to the following relief:

* voiding the applicant's placement on the TDRL effective 6 February 2012
* voiding the applicant's placement on permanent disability retirement status with a 30% rating effective 16 July 2013
* reflecting the applicant's was approved for COAD effective 6 February 2012 through 31 January 2014
* retiring the applicant for length of service pursuant to Title 10, USC, section 3914 effective 1 February 2014
* instructing the Defense Finance and Accounting Service (DFAS) to:

* paying the applicant all back pay and allowances from 6 February 2012 through 31 January 2014, minus any retired pay he received while on the TDRL or Permanent Disability Retired List (PDRL)
* recalculating and paying him retroactively from 1 February 2014 retired pay based on 20 years of active Federal service
* reviewing his eligibility for enrollment in the Concurrent Retirement and Disability Pay (CRDP) plan and enroll him in that plan retroactively to 1 February 2014

* any other relief or benefits to which the Board determines the applicant is entitled to

2.  Counsel states:

   a.  The applicant was referred to the PDES in 2010.  Contrary to the express requirements of AR 635-40 the Physical Evaluation Board Liaison Officer (PEBLO) assigned to guide the applicant through the PDES failed to counsel the applicant on his option to apply for COAD and failed to obtain from the applicant a written declination of the option to request COAD.  As a result, due to an unfitting medical condition a PEB resulted in the applicant's separation from the service and placement on the TDRL at a time when the applicant had over 18 years of active Federal service.  A subsequent PEB recommended his placement on the PDRL with a 30% rating.

   b.  At the time he was placed on the TDRL, the applicant was not afforded the opportunity to request COAD and was improperly denied the option to be retained on AD until he completed 20 years of active Federal service.  Confronted with facts identical to those in the applicant's case, the Army Board for Correction of Military Records (ABCMR) in docket number AR20110001781 granted full relief to the applicant by voiding the applicant's placement on the TDRL and correcting the record to reflect the applicant was approved for COAD for a period ending when she reached 20 years of active Federal service, at which time she was retired.

   c.  The applicant entered AD in the Regular Army (RA) on 6 January 1994.   In 2010, he was assigned to Headquarters and Headquarters Company, 143rd Ordnance Battalion, at the Aberdeen Proving Ground in Edgewater, MD.  Due to various medical conditions, the applicant was referred to the PDES in the early part of 2010.  On or about 24 August 2010, the applicant met with his PEBLO, Mr. Rxxxx.  Mr. Rxxxx explained to the applicant the process involved with the joint Departments of Defense (DoD) and Veterans Affairs (VA) Disability Evaluation System Pilot Program, which would lead to a determination of his fitness for continued military service.  In effect, he explained to the applicant the Medical Evaluation Board (MEB) and PEB processes.  

   d.  Mr. Rxxxx did not counsel the applicant on or discuss with him any options he might have to remain on AD or to apply for COAD under AR 635-40.  At Mr. Rxxxx's request the applicant signed and dated as of 24 August 2010 a Joint DoD/VA Disability Evaluation Pilot Referral form.  In April 2011, an MEB recommended the applicant be referred to a PEB.  In early May 2011, Mr. Rxxxx informed the applicant via the telephone of this referral and sent him the various MEB-related documents including the MEB Proceedings and Narrative Summary. Mr. Rxxxx instructed the applicant to review the MEB documents and indicate whether he agreed with the MEB's decision, whether he wanted to submit an appeal of the MEB's decision, and whether he wanted to request a review of the MEB's findings by an impartial doctor.  

   e.  Based on the applicant's discussion with Mr. Rxxxx, the applicant indicated on the DA Form 3947 (MEB Proceedings) he agreed with the MEB's findings and signed and dated the form on 9 May 2011.  In their telephone conversation, Mr. Rxxxx did not discuss with the applicant Item 15 (desire to continue or not continue on AD) of the DA Form 3947 and the applicant does not recall marking Item 15 indicating whether he did or did not desire to continue on AD under AR 635-40.  The second page of the DA Form 3947 is blurred, but it does not appear as though Item 15 has been marked.

   f.  In their telephone conversation, Mr. Rxxxx did not counsel the applicant on or discuss with him any option he might have to remain on AD, to apply for COAD, or the impact to the applicant if he did not apply for COAD before his case was considered by the PEB.  Mr. Rxxxx did not ask the applicant to provide nor did he provide to Mr. Rxxxx a written statement signed by himself declining to request COAD.  In their conversation, Mr. Rxxxx did not use, refer to, or discuss with the applicant a DA Form 5893 (Soldier's MEB/PEB Counseling Checklist).  

   g.  Section IIIA of a DA Form 5893 has a line item for a Soldier's initials reflecting that "I have been counseled and understand the criteria and procedures for requesting continuance on AD or continuance in the Active Reserve (COARD/COAR)."  In addition, Section IV of the DA Form 5893 is entitled “acknowledgement in which the Soldier's signature represents that the Soldier was counseled on the above marked items as they pertain to his disability evaluation" and the PEBLO's signature represents that the PEBLO counseled the above-named Soldier on those items listed in the checklist as they pertained to the case.  No DA Form 5893 was included in the MEB materials relating to the applicant that were transmitted to the PEB.

   h  The PEB Proceedings are devoid of a writing by the applicant declining to request COAD, nor is there any written statement signed by the PEBLO, Mr. Rxxxx, that he counseled the applicant on requesting COAD and the applicant declined COAD and refused in writing to indicate his declination of COAD.  On 28 October 2011, a PEB determined the applicant's medical condition of generalized anxiety disorder to include panic disorder with agoraphobic features was unfit and recommended his placement on the TDRL with a rating of 50%.

   i.  In early November 2011, Mr. Rxxxx called the applicant and informed him of the PEB's findings and recommendations.  By email or facsimile, Mr. Rxxxx sent the applicant the DA Form 199 (PEB Proceedings) which included an election of rights form.  Mr. Rxxxx explained to the applicant that if he agreed with the informal PEB he would be out-processed as a retiree and would begin receiving disability retirements payment of 50% of his basic pay.

   j.  In response to questions from the applicant, Mr. Rxxxx stated the applicant would be eligible for CRDP which the applicant understood to mean his disability retired pay would not be offset by any disability payments he received from the VA.  Mr. Rxxxx assured the applicant that his disability retirement with a 50% rating would mean that he would receive and be eligible for all of the same benefits and privileges he would receive as if he had retired based on length of service after 20 years of AD service.  Based on this discussion, the applicant initialed and dated the election form as of 3 November 2011 to reflect that he concurred with the PEB's findings, he waived his rights to a formal hearing of his case, and he did not request a reconsideration of the VA's rating.

   k.  Orders Number 321-0004, dated 17 November 2011, issued by the U.S. Army Garrison, Aberdeen Proving Ground, placed the applicant on the TDRL with a 50% rating effective 6 February 2012.  The orders reflected the applicant had completed 18 years, 1 month, and 1 day of active Federal service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the effective date of his placement on the TDRL and total active service credit.

   l.  When the applicant was placed on the TDRL, based on his discussion with Mr. Rxxxxx, he understood he would receive both military and disability retired pay and VA disability payments with no offset.  In or about July 2013, the applicant learned that he would receive only the VA payments, because his military retired pay was offset dollar for dollar by the amount of VA benefit payments he received.  This resulted in a significantly smaller monthly disability payment amount for the applicant than the amount for which he had planned based on the guidance and advice he received from Mr. Rxxxxx.

   m.  The applicant tried to contact Mr. Rxxxx at Fort Meade, MD, to obtain assistance but was told Mr. Rxxxx no longer worked there.  Based on the applicant's and his wife's research and communications the applicant had with various individuals in the Army and otherwise responsible for providing information to veterans, the applicant learned that he was not eligible for CRDP because he did not have 20 years of active Federal service when he retired.  This was directly contrary to what Mr. Rxxxx told the applicant when he counseled the applicant as his PEBLO.  The applicant communicated with a Member of Congress but was unable to obtain help with his ineligibility for CRDP.

   n.  In June 2013, a PEBLO (not Mr. Rxxxx) sent the applicant a DA Form 199, dated 21 May 2013, reflecting an informal PEB had determined that he continued to have an unfitting medical condition, but his rating was downgraded to 30% and recommended his permanent disability retirement.  The PEBLO requested the applicant complete the election of rights form regarding the PEB's decision.  Based on his prior experience, the applicant completed the form on 20 June 2013 indicating he did not concur with the PEB's recommendation and requested a formal hearing.

   o.  After counseling with his PEB counsel, the applicant learned that he could have applied for COAD, which if approved, would have enabled him to remain on AD until he was eligible to retire for length of service after 20 years of active Federal service which would have made him eligible for CRDP.  He also learned that his COAD application had to be submitted after the MEB referred his case to a PEB and at the time he made his election of rights in response to the informal PEB's findings and recommendation it was too late.  He also learned that Mr. Rxxxx was required to counsel him about COAD options and his right to apply for COAD and to get a written statement signed by him if the applicant decided not to apply for COAD.
   p.  In addition, the applicant withdrew his request for a formal PEB and accepted the informal PEB's findings and recommendations.  The applicant was concerned about the potential risk that the formal PEB might reduce his disability rating below 30%.  If that happened, he would have faced being discharged with a severance payment instead of receiving disability retired pay based on a 30% rating.  On 16 June 2013, the applicant was removed from the TDRL and placed on the PDRL with a 30% rating.

   q.  Had the applicant been afforded the opportunity to request COAD, his period of COAD would have extended from 6 February 2012 through 31 January 2014, the last day of the month in which he would have attained 20 years of active Federal service.  A retirement to length of service is more advantageous to the applicant than a disability retirement with a 30% rating.  With the applicant's record corrected to reflect his retirement with 20 years of service, because he had a combined disability rating from the VA of 80%, he will qualify for CRDP and he will not be subjected to a dollar for dollar offset of his military retired pay based on the VA disability payments he receives.

3.  Counsel provides copies of the following:

* applicant's Declaration
* Joint DoD/VA Disability Evaluation Pilot Referral
* DA Form 3947
* Annex 1 to Appendix C (Impartial Provider Review (IPR) Request)
* two DA Forms 199
* Orders Number 321-0004
* DD Form 214
* letter from a Member of Congress
* Withdrawal of demand for formal PEB hearing memorandum
* Order Number D197-33
* email correspondence from the U.S. Army Physical Disability Agency (USAPDA)
* DA Form 5893 (blank)
* AR20110001781 Record of Proceedings (ROP)
* Westlaw Civil Action No. 09-662

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the RA on 6 January 1994 and he served in military occupational specialty 91Z (mechanical maintenance).  

2.  Counsel provided copies of the following:
   a.  Applicant's Declaration wherein the applicant reiterated counsel's statements and declared them to be true and accurate.

   b.  A Joint DoD/VA Disability Evaluation Pilot Referral form which shows the applicant was diagnosed with anxiety disorder, syncope, and Raynaud's syndrome.  The form was referred to a PEBLO (Mr. Rxxxx) on 24 August 2010.  The PEBLO sent the case to an MEB on 14 April 2011 and notified the applicant of the MEB's findings on 18 April 2011.

   c.  A DA Form 3947 which shows an MEB convened on 30 March 2011 and referred the applicant to a PEB.  The form indicated the applicant did not desire to continue on AD and he concurred with the findings and recommendations of the MEB.

   e.  An Annex 1 to Appendix C (IPR Request), dated 9 May 2011, wherein the applicant indicated he did not request an impartial medical review of his MEB.

   f.  A DA Form 199 which shows an informal PEB convened on 28 October 2011 and determined the applicant's was medically unfit and recommended he be placed on the TDRL with a combined disability rating of 50%.  On 3 November 2011, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.

   g.  Orders Number 321-0004, issued by the U.S. Army Garrison, on 17 November 2011, releasing the applicant from AD and placing him on the TDRL with a 50% rating.  The orders show he had completed 18 years, 1 month, and 1 day of net active service.

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.  The applicant was honorably retired in pay grade E-8 on 6 February 2012, under the provisions of AR 635-40, chapter 4, by reason of temporary disability and was placed on the TDRL.  He was issued a DD Form 214 crediting him with completing 18 years, 1 month, and 1 day of net active service.

5.  Counsel also provides copies of the following:

   a.   A DA Form 199 which shows on 21 May 2013 an informal PEB convened and determined the applicant's medical condition of generalized anxiety disorder remained unfitting and was considered stable to final rating.  The PEB rating of 30% accurately reflected the current degree of severity of his condition.  The PEB determined his other MEB medical conditions were not unfitting as they met medical retention standards.  The PEB recommended his permanent disability retirement with a 30% rating.  On 20 June 2013, he did not concur with the PEB and requested a formal hearing with appointed counsel.

   b.  A Withdrawal of Demand for Formal PEB hearing memorandum, dated 12 July 2013, wherein after consulting with counsel the applicant requested withdrawal of his request for a formal PEB hearing.

   c.  Order Number D197-33, issued by the USAPDA, on 16 July 2013, removing the applicant from the TDRL and permanently retiring him with a 30% rating.

   d.  Email correspondence from the USAPDA, dated 9 January 2014, wherein the Retirement and Separations section and the applicant's PEB counsel were advised that a review of the records did not reveal the MEB Counseling Checklist.

   e.  A blank DA Form 5893 which is a form applicable to all Soldiers processing through the PDES

   f.  ABCMR docket number AR20110001781 Record of Proceedings, dated   24 February 2011, wherein the ABCMR granted full relief to an applicant by voiding the applicant's placement on the TDRL and correcting the record to reflect the applicant was approved for COAD for a period ending when she reached 20 years of active Federal service, at which time she was retired.

6.  AR 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 a COAR status as an exception to policy.  The regulation states in:

   a.  Paragraph 6-6 – the PDES 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. 

   b.  Paragraph 6-7 – the guidance on qualification and processing for COAD/COAR.  It states to be considered for COAD/COAR, a Soldier must meet the following criteria:

		(1)  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;

		(2)  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

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

   c.  Paragraph 6-8 - 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.

7.  Title 10, USC, section 3941 states an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title may, upon his request, be retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions were carefully considered and found to have merit.  Notwithstanding the applicant indicating on his MEB Proceedings that he did not desire to continue on AD, 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 he 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 correct his records as recommended below.

BOARD VOTE:

___x_____  ____x____  __x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

* voiding the applicant's 6 February 2012 retirement and placement on the TDRL
* showing he was approved for COAD and continued serving on active duty through 31 January 2014, the last day of the month during which he completed 20 years of active military service
* showing he was retired by reason of length of service on 1 February 2014, with entitlement to all back pay and allowances
* issuing a new DD Form 214 reflecting this change
* voiding his permanent disability retirement on 16 July 2013
* recalculation of his retired pay by DFAS from 1 February 2014 based on a length of service retirement 
* review of his records by DFAS for eligibility for enrollment in the CRDP plan and enrollment in that plan if eligible effective 1 February 2014



      _______ _   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)                                         AR20140002146





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002146



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1