IN THE CASE OF:  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120011949 


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, an exception to policy to the Post-9/11 GI Bill that will allow him to transfer his education benefits to his family members.

2.  The applicant states, in effect, that he did not receive assistance or counseling to the effect that he had to transfer his education benefits before retiring. 

3.  The applicant provides exhibits A through E consisting of:

* Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) Proceedings
* A statement from a Soldier regarding the mortar attack on 25 August 2006 and his conversation with the applicant
* A copy of an email regarding the applicant’s discharge
* A copy of a bill for Survivor Benefit Plan (SBP) premiums
* Line of Duty Determinations, commander’s evaluation, retirement points statement, a copy of his automated record, and copies of chronological records of medical care
* A copy of Department of Defense Instruction (DODI) 1241.2 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be allowed to transfer his education benefits to his spouse. 

2.  Counsel states, in effect, that because of the circumstances surrounding the applicant’s disability retirement, he was not afforded proper pre-retirement counseling and assistance regarding his transfer of education benefits. 

3.  Counsel provides no additional documents with the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Arizona Army National Guard (AZARNG) on     16 March 1982.  He completed his training as a construction equipment repairman and continued to serve until he was discharged on 21 March 1988 and was transferred to the U.S. Army Reserve (USAR) to complete his statutory service obligation.  He was honorably discharged from the USAR on 
21 March 1992.

2.  He enlisted in the Nevada Army National Guard (NVARNG) on 15 February 2005 and on 1 April 2005 entered full-time active duty in the NVARNG as an Abrams Tank System Maintainer. 

3.  He deployed to Iraq from July 2006 to July 2007 in support of Operation Iraqi Freedom.  

4.  On 14 April 2011, a PEB was conducted at Fort Lewis, Washington and evaluated the following conditions:

   a. Cervical disc fusion.  This is not a battle injury and did not occur in a combat zone.  Neck pain of several years duration during which Soldier underwent C5-C6 diskectomy and fusion.  Symptoms have persisted despite therapy.  Unfitting as Soldier cannot wear LBA, carry a combat load, or perform functional activities.  Stable. Rated 10% for active forward flexion of 40 degrees “IAW VASRD [Veterans Affairs Schedule for Rating Disabilities] 4.71a”

   b. Left Knee Chondromalacia Patella.  This is not a battle injury and did not occur in a combat zone.  MRI of left knee was normal.  Soldier reports constant 4-5/10 pain that worsens with climbing or going down stairs.  Examination shows tenderness to palpitation along the joint line and with collateral ligament tearing, and flexion of 140 degrees.  Unfitting as Soldier cannot run, jump, carry a combat load, or perform functional activities.  Stable.  Rated 10% for painful motion of a major joint, that includes consideration of functional loss “IAW VASRD paragraph 4.10. 4.40 and 4.59”  

5.  The PEB found that the remainder of the diagnoses considered by the MEB were considered by the PEB and found to not be compensable.  The PEB recommended that the applicant be granted permanent disability retirement with a 30% disability rating.  It also determined that his disabilities did not result from a combat related injury as defined in Title 26, U.S. Code, Section 104.

6.  On 28 April 2011, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

7.  On 16 May 2011, a letter was dispatched to the applicant notifying him that his PEB had been approved and he would be retired by reason of permanent disability with a 30% disability rating on 20 June 2011.  He was also provided a DD Form 2656 (Data for Payment of Retired Pay) and was advised to contact a Retirement Services Officer (RSO) from the list provided for assistance regarding his retirement and SBP counseling.  He was further advised that officials at the Defense Finance and Accounting Service (DFAS) could not process his retired pay benefits until the form was received.

8.  On 20 June 2011, he was honorably discharged from the NVARNG and was transferred to the Retired Reserve.

9.  A review of the available records failed to show evidence of the applicant attempting to transfer his Post–9/11 GI Bill benefits. 

10.  During the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau (NGB) which opined that the applicant was eligible to transfer his education benefits prior to his retirement and recommended that he be allowed to do so.  The advisory opinion was provided to the applicant and he concurred with the opinion.

11.  Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused education benefits to family members.  The law provided that the Secretary of Defense would prescribe the implementation of the program.  It also provided that eligible participants must be serving as a member of the Armed Forces when the transfer is executed.

12.  On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum 09-003 – Post-9/11 GI Bill that announced that individuals serving in the Armed Forces could effect a transfer of the GI Bill benefits effective 1 August 2009.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and the opinion from the NGB have been noted.  However, according to the applicable law and regulation, he is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program.  He retired from the Army on 20 June 2011 and there is no record of his transferring his educational benefits prior to his retirement.  Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits to his family members.

2.  Additionally, the Departments of the Army, Defense, and Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of its implementation.

3.  While the sincerity of the applicant’s claim that he was not informed that he had to be on active duty to complete a transfer of his benefits prior to retiring is not in question, the evidence submitted with his application and the evidence of record fails to support his claim.  Therefore, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120011949





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ABCMR Record of Proceedings (cont)                                         AR20120011949



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