IN THE CASE OF:	 

		BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140004501 


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, continuation on active duty from 4 November 2013 (the date he was honorably released from active duty) to 6 January 2014 (the date he was retired by reason of disability). 

2.  The applicant states he was erroneously separated from active duty on 4 November 2013 while still undergoing disability processing.  He was ultimately retired for disability on 6 January 2014.  He now has trouble getting benefits from the Department of Veterans Affairs because his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated due to completion of required service vice disability retirement.  He should not have been discharged while pending a medical evaluation board/physical evaluation board (MEB/PEB). 

3.  The applicant provides Orders 038-0008 and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Regular Army (RA) commissioned officer and executed an oath of office on 4 November 2010.  He was promoted to first lieutenant (1LT) on 4 November 2012. 

2.  It appears he submitted a request for unqualified resignation and his request was approved.  As such, on 7 February 2013, U.S. Army Garrison, Schofield Barracks, HI published Orders 038-0008, amended by Orders 239-0021, dated 27 August 2013, honorably releasing him from active duty effective 4 November 2013 - at the 3-year active duty mark, by reason of having completed his required service.  The orders listed a terminal date of Reserve obligation as 14 September 2017. 

3.  It appears shortly after these orders were published the applicant entered the Integrated Physical Disability Evaluation System (IDES) due to multiple medical conditions. 

4.  On 27 March 2013, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the conditions below.  The MEB recommended referral to a PEB. He was counseled and agreed.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Combined/Mixed Classic Migraine and Muscle Contraction Headaches

X
2.  Thoracic Spine Degenerative Disc Disease  

X
3.  Adjustment disorder
X

4.  Bilateral tinnitus 
X

5.  Traumatic brain injury
X

6.  Cervicalgia secondary to Scheuermann's disease 
X

7.  Right brachial plexopathy
X

8.  Bilateral pes planus and bilateral plantar fascitiis 
X

9.  Erectile dysfunction 
X

10.  Right cubital tunnel syndrome 
X

11.  Abnormal auditory perception 
X

5.  On 14 June 2013, the applicant signed a statement addressed to the PEB.  He stated that he was going through the PDES and was currently pending the VA rating to complete the process.  His expiration of term of service (ETS) is 
4 November 2013.  He added "I have been fully advised of the rights and advantages of voluntarily remaining on active duty in the Army beyond the scheduled date of my release for the purpose of completing Physical Disability Evaluation under the provisions of Chapter 61, Title 10, U.S. Code.  I do not desire retention on active duty in the Army beyond my scheduled date of expiration of term of service." 

6.  On 12 September 2013, by email, he asked his PEBLO to confirm receipt of his memorandum regarding his desire not to extend on active duty.  The PEBLO confirmed positively.

7.  He was honorably released from active duty on 4 November 2013 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form 214 shows he was released from active duty by reason of having completed his required service.  He completed 3 years and 1 day of active service. 

8.  On 5 November 2013, since he still had service remaining requirements, he was appointed as a Reserve commissioned officer of the Army in the rank of 1LT.  He was assigned to the 3rd Battalion, 7th Field Artillery Regiment, Schofield Barracks, HI. 

9.  On 15 November 2013, an informal PEB (IPEB) convened and found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to the conditions below.

	a.  The PEB rated his medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) Code 8100 (Combined/Mixed Classic Migraines and Muscle Contraction Headaches), rated at 30 percent; and VASRD Code 5237 (Thoracic Spine Degenerative Disc Disease), rated at 10 percent. The PEB recommended a combined rating of 40 percent and permanent retirement.   

	b.  The applicant was counseled and concurred with the findings and recommendations of the PEB on 15 November 2013.  He also waived his right to a formal hearing of his case and indicated he did not intend to appeal the proposed VA rating.  The U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations on behalf of the Secretary of the Army on 9 December 2013. 

10.  On 2 December 2013, the USAPDA published Orders D336-15 ordering his retirement by reason of physical disability and he was placed on the Retired List in his retired grade of 1LT effective 6 January 2014. 

11.  According to the PEBLO, the applicant's disability processing continued because the applicant had service obligations.  By email, dated 28 October 2014, the PEBLO certified that she counseled him but he declined retention on active duty beyond the expiration date of term of service (4 November 2013).  The PEBLO provided a copy of the applicant's DA Form 5893 (Soldier's MEB/PEB Counseling Checklist) which indicates the applicant was counseled and understood the criteria and procedures for requesting continuance on active duty (COAD).  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating.  

	a.  Paragraph 6-2 states the primary objective of the continuation on active duty (COAD) 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.  Continuation in a military status is generally subject to the Soldier’s consent.  However, the Secretary of the Army or their designee may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience.

	b.  Paragraph 6-4 states, normally, 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 Title 10, U.S. Code, section 3911 or 3914.

	c.  Paragraph 6-8 states before the Soldier completes an application for COAD, the PEBLO will counsel the Soldier according to appendix C of this regulation.  The PEBLO will specifically inform the Soldier of the following: (1) Before a COAD application is forwarded to the approval authority, the PEB will process the case to completion, to include the following convening a formal hearing, if requested, determining a percentage rating, and recommending a disposition that will apply if application for continuation is disapproved.  The PEBLO will counsel the Soldier of the eligibility criteria for requesting continuation and that if continuation is approved, the Soldier must be referred to the PDES before expiration of the continuation period unless Soldier waives in writing the final referral, that the final PDES evaluation could result in a fit finding, and that if the request is disapproved, the approval authority will notify the military treatment facility of the USAPDA.  

	d.  Paragraph 6–10 states the fact that a Soldier has or has not applied for COAD will not influence the determination of fitness or percentage of the disability rating.  The Commander, U.S. Army Human Resources Command is the approval authority for an RA officer requesting COAD. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant entered active duty as an RA commissioned officer on 2 June 2010 and he was honorably released from active duty on 4 November 2013 and transferred to the USAR Control Group (Reinforcement).  He was appointed as a Reserve commissioned officer the very next day.  

2.  However, prior to his release from active duty, the applicant had entered the disability system and his MEB convened on 27 March 2013 and referred him to a PEB.  He was counseled and clearly stated his desire not to continue on active duty.  However, since he had resigned and was transferred to the USAR, although he was released from active duty, his disability processing continued.  

3.  Since his disability was part of the IDES, the PEB had to wait on the VA to provide his rating.  This was done in October 2013.  The PEB convened on 15 November 2013 and recommended his permanent retirement by reason of disability at the rate of 40 percent.  He concurred, waived his right to a formal hearing of his case, and indicated he did not want to appeal the VA proposed rating.  He was accordingly retired on 6 January 2014.  

4.  Contrary to his belief that he was "erroneously separated from active duty on 4 November 2013 while still undergoing disability processing," the evidence of record clearly established that he resigned his commission, elected 4 November 2013 as his separation date, elected not to continue on active duty, and he was properly released from active duty on 4 November 2013.  

5.  The evidence clearly shows his physical disability evaluation was conducted in accordance with law and regulations and the applicant exercised his rights and options with respect to the disability process and the option to request COAD.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  Therefore, he is not entitled to 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)                                         AR20140004501





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ABCMR Record of Proceedings (cont)                                         AR20140004501



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