IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20140020522 


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 Continuation on Active Reserve (COAR) status. 

2.  The applicant states he would like to be retained in the Army National Guard (ARNG) because his type II diabetes should not preclude his service in the ARNG.  He does not wish to be medically retired.
 
3.  The applicant provides:

* DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings)
* memorandum, subject:  Rebuttal to PEB Findings, dated 28 July 2014
* letter of rebuttal 
* National Guard Bureau (NGB) Form 23 (ARNG Retirement Points History Statement) 
* Soldier’s Worksheet

CONSIDERATION OF EVIDENCE:

1.  After having prior commissioned service in the U.S. Air Force, the applicant had a break in service.  On 21 April 2009, he was appointed as a Reserve commissioned officer in the ARNG.  

2.  On 28 January 2014, a formal PEB convened, considered his case, and found he was physically unfit and would be referred for case disposition under Reserve Component regulations.

     a.  The PEB determined he was physically unfit due to diabetes mellitus,    type II.

     b. The PEB noted that his condition prevented the performance of Common Soldier Tasks.  It also noted that he could not live in an austere environment without worsening his condition and continued exposure to the rigors of military service would create an unreasonable risk to the Soldier’s health and would also impose unreasonable requirements on the Army to maintain his health. 

    c.  The PEB noted that he contended that he should be considered fit for duty for his condition.  The Board was recessed in order for him to provide updated lab results.  

     d.  Laboratory results and an updated exam were provided by his counsel.  After a review of the updated medical information, the PEB sustained the findings of the informal PEB and found him unfit for continued duty.

     e.  New laboratory results, dated 10 January 2014 indicated an A1c of 8.2 which had increased since his A1c on 26 August 2013.  His glucose level was 194, up from 172.  His medication was increased to the maximum dosage.  The treating physician indicated he had inadequately controlled his diabetes. 

     f.  On 11 April 2014, he did not concur with the PEB's findings and submitted a written appeal.

3.  In his written appeal he stated:

     a.  He continued to contend that he was fully capable of performing his duties and he was physically fit.

     b.  He had been working hard with a doctor-appointed dietician to reduce his blood sugar level and would soon need less medicine to control it.

     c.  He had a good handle on what foods to eat and what to avoid.  He worked out four to six days a week to stay in good physical condition.  He could successfully complete his two remaining years of service for nonregular retirement and perform at a high level with his unit.	 

4.  A memorandum, subject:  Waiver of Right to Election, issued by the U.S. Army PEB, Tacoma, WA, dated 1 April 2014 states that the applicant affirmed receipt and was provided the findings and recommendations of the informal PEB but had not responded.  He was considered to have accepted the findings and recommendations of the informal PEB.    

5.  As of 26 June 2014, the applicant had 17 years, 10 months and 20 days of creditable service for retired pay based on his ARNG Retirement Points History Statement. 

6.  A memorandum, subject:  Rebuttal to PEB Findings, issued by U.S. Army Physical Disability Agency (USAPDA), Arlington, VA, dated 28 July 2014 stated the USAPDA noted his disagreement with the findings of the PEB and had reviewed his entire case.  The agency concluded that his case was properly adjudicated by the PEB, which correctly applied the rules that governed the Physical Disability Evaluation System (PDES) in making its determination.  The findings and recommendations of the PEB were supported by substantial medical evidence and were therefore affirmed.  The issues raised in his appeal were responded to by the PEB in its 27 November 2013 memorandum.  The USAPDA concurred with the response provided by the PEB.  

7.  On 4 November 2014, the COARNG, Joint Force Headquarters, Centennial, CO issued the applicant a notification of eligibility letter for retired pay for nonregular service (15-Year Letter).  The memorandum stated the applicant had more than 15 years of qualifying service for nonregular retirement and would be eligible for retired pay at age 60 unless qualified for a reduced eligible age as allowed by law.  The memorandum stated the applicant no longer met the qualifications for membership in the Selected Reserve solely because he was unfit due to physical disability.  The letter directed his discharge from the ARNG unless he requested transfer to the Retired Reserve.  In addition, it stated the applicant was not entitled to earn additional retirement points toward nonregular retired pay unless specifically authorized by the Secretary of the Army.

8.  Orders 308-008, issued by COARNG, Joint Force Headquarters, Centennial, CO, dated 4 November 2014 show he was transferred to the Retired Reserve with an effective date of 7 July 2014.

9.  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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.                      

10.  Chapter 6 of the disability regulation contains the policy on Continuation on Active Duty (COAD) and Continuation on Active Reserve (COAR) status of unfit Soldiers.  It 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.  COAD applies only to officers on the active duty list and Regular Army enlisted Soldiers.  COAR applies to Reserve Component (RC) Soldiers to include ARNG unit members who may request COAR.  To be eligible for COAR consideration a Soldier must have 15, but less than 20 years of qualifying service for nonregular retirement.  Normally, a COAR will be for any length of time up to the minimum time required for a Soldier to be issued and receive a 20-Year Letter of qualifying service for purposes of qualifying for nonregular retired pay under Title 10, U.S. Code, section 12731.  In pertinent part, if the disability remains unchanged or increases in severity, the PEB will find the Soldier unfit because of physical disability.  The determination must be made based on the Soldier’s current ability to perform his or her duties.  To be approved for a COAR, a Soldier’s health or physically limiting condition must be basically stable or the disability must be of a slow progression according to accepted medical principles.  The medical condition must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Soldier or the Army.    

DISCUSSION AND CONCLUSIONS:

1.  By regulation, the COAR applies to RC Soldiers determined unfit who have more than 15 years of qualifying service but less than 20 years of qualifying service for nonregular retired pay.  The unfitting medical condition must be stable and not increasing in severity to warrant favorable consideration of a COAR.  The evidence of record shows the applicant’s medical condition had increased in severity which warranted a PEB determination of unfitness and his eventual separation from the ARNG.  

2.  With more than 17 years of qualifying service for nonregular retirement, the applicant was properly processed through the PDES in accordance with the applicable laws and regulations.  His case was properly considered by a PEB and his appeal was properly reviewed at a formal PEB hearing.  All the arguments and medical evidence were considered and evaluated by both the PEB during its original review and during the appellate process, which included a formal PEB hearing and a USAPDA review, both of which upheld the original PEB findings and recommendations.

3.  As a result, there is an insufficient basis to support granting his request for COAR to complete 20 years of qualifying service for nonregular retired pay.  Of note, the applicant did receive a 15-Year Letter for nonregular retired pay based on his unfitting condition and he was transferred to the Retired Reserve.  Upon application at the appropriate age, he will receive retired pay.

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)                                         AR20140020522





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ABCMR Record of Proceedings (cont)                                         AR20140020522



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