IN THE CASE OF:	  

		BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140005359 


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, correction of item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 18 September 2013, to reflect he served on active duty in accordance with (IAW) Title 10 for the purpose of qualifying for 100 percent (%) of the GI Bill education benefits.

2.  The applicant states:

   a.  In April 2011, a line of duty (LOD) determination was approved with occurrence during Operation Enduring Freedom (OEF).  At this point he was placed in the Integrated Disability Evaluation System (IDES) at Fort Knox, KY, after serving more than 30 continuous days of qualifying service for chapter 33 Education Benefits.  

   b.  In April 2012 (approximately), he made a request to his Physical Evaluation Board Liaison Officer (PELBO) to be placed in the Community Based Warrior Transition Unit/Warrior Transition Unit (WTU).  This would have removed him from the Michigan Army National Guard (MIARNG) orders and placed him on Title 10.  His request was denied.  It was the understanding of his PEBLO that he could not be placed in the WTU if he had less than 6 months left in his process.  During the 21 months he was in the IDES system he made this request on at least two other occasions and was given the same response.

   c.  During the numerous briefings he received he was told that he would qualify for 100% of the GI Bill benefits; however, it now appears that the orders he was separated on did not qualify him for chapter 33 benefits.  Although his intention to be placed in the WTU had nothing to do with education benefits it would have mitigated his current injustice.  

   d.  If his 2013 DD Form 214 or last order reflected qualifying service then he would be awarded the proper benefits he believes he qualifies for.  He initially tried to deal with this matter directly with the Department of Veterans Affairs (VA) and they stated that there was nothing they could do from their end.  He then took up the matter with the U.S. Army Human Resources Command and they referred him to the Army Review Boards Agency.

3.  The applicant provides copies of the following:

* DD Form 214 ending on 17 November 2004
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* LOD Determination memorandum
* DA Form 199 (PEB Proceedings) (pages 1 and 2)
* 2013 DD Form 214
* VA letter 
* Post-9/11 GI Bill brochure

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the MIARNG on 13 February 1998.  He was awarded military occupational specialty 13F (fire support specialist).  

2.  Orders Number 335-138, issued by the MIARNG, on 1 December 2003, ordered him to active duty in support of Operation Enduring Freedom under the authority of Title 10, U.S. Code (USC), section 12302, not to exceed 365 days.

3.  He entered active duty on 1 December 2003.  He served in Cuba from 7 January 2004 through 27 October 2004.  

4.  He was released from active duty on 17 November 2004 and was transferred to an MIARNG unit.  His DD Form 214 lists in:

* Item 12a (Date Entered Active Duty This Period) – 1 December 2003
* Item 12b (Separation Date This Period) – 17 November 2004
* Item 12c (Net Active Service This Period) - 11 months and 17 days (353 days) of net active service
* Item 18 – "Ordered To Active Duty In Support of OEF IAW Title 10, USC, Section 12302"

5.  Orders Number 336-003, issued by the MIARNG, on 1 December 2004, transferred him from one MIARNG unit to another effective the same date.  The orders also state he was released from active duty on 17 November 2004.  It appears he was returned to his Title 32, Active Guard Reserve (AGR) status on 
18 November 2004.

6.  His record is void of any other orders authorizing him entry on active duty under Title 10.

7.  A DA Form 2173, dated 20 January 2011, shows he was seen at a civilian hospital on 18 January 2005 and was diagnosed with metastatic papillary thyroid cancer and diabetes mellitus.  The form stated he was deployed to Guantanamo, Cuba, from January to October 2004.  While deployed, he started having diabetes symptoms, but he attributed them to the large amounts of water he was drinking while in Cuba.  Upon his release from active duty he was seen by his private doctor and was diagnosed with type 1 diabetes.  Shortly after, he noticed a mass on his neck and was seen by a specialist and was diagnosed with thyroid cancer.

8.  An LOD memorandum, dated 25 April 2011, shows the National Guard Bureau (NGB) advised the MIARNG of the approval of the applicant's LOD for metastatic papillary thyroid cancer and diabetes mellitus which occurred during OEF.

9.  A PEB convened on 24 April 2013 and considered his medical conditions of thyroid carcinoma, diabetes mellitus, and low back pain.  The PEB determined the following:

   a.  The onset of the thyroid carcinoma was documented in 2005 and was not combat-related and represented a decided medical risk to the applicant and to the welfare of other unit members.  The disability would also impose unreasonable requirements on the Army to maintain the applicant's health.  

   b.  The onset of the diabetes mellitus was documented in 2004 and was not combat related.  The applicant's expected fluctuations in his high blood-sugar control, coupled with his need to have an insulin pump, imposed unreasonable requirements on the military to maintain and protect the applicant.

   c.  The low back pain had no impact on the applicant's functionality and met medical retention standards and did not represent a decided medical risk to the applicant.

   d.  The PEB stated the applicant's medical conditions were reconsidered by an informal PEB on 3 July 2012 and that PEB superseded the previous PEB.  The PEB concluded that his medical conditions prevented his satisfactory performance of duty in his grade and primary specialty.  The PEB recommended his permanent disability retirement with a combined rating of 100%.

10.  He was honorably retired on 18 September 2013 by reason of permanent disability.  He was issued a DD Form 214 which lists in:

* Item 12a – 18 November 2004
* Item 12b – 18 September 2013
* Item 12c - - 8 years, 10 months, and 1 day of net active service.
* Item 18 – no entry for Title 10 service

11.  He was discharged from the MIARNG on 18 September 2013.  Item 18 (Remarks) of his NGB Form 22 (Report of Separation and Record of Service) lists the following:

* AGR – 29 April 2002 through 30 November 2003
* OEF – 1 December 2003 through 17 November 2004
* AGR – 18 November 2004 through 17 September 2013

12.  He provided copies of the following:

   a.  A letter, dated 25 November 2013, wherein the VA advised him of the following:

		(1)  That he had been awarded education benefits under the Post-9/11 GI Bill.  Their records showed, as of 25 November 2013, he was entitled to receive 50% of the benefits.  The percentage determination was based on his length of creditable active duty service and the following service information - 1 December 2003 through 17 November 2004 totaling 353 service length in days.

		(2)  By law, they could not include dates of entry level and skill training because his total aggregate service was less than 24 months.  Active Duty meant full-time duty in a regular component of the Armed Forces or under a call or order to active duty Title 10 or Title 32. 

		(3)  Their records indicated he had one call-up to active duty under Title 10 from 1 October 2003 (i.e., 1 December 2003) through 17 November 2004.  The Department of Defense also confirmed that he was returned to a drilling status until his separation from the ARNG in 2013.
		(4)  The DD Form 214 he provided to them on 20 August 2013 was NOT for a period of Title 10 service; therefore, it did not meet the foregoing criteria to qualify under chapter 33.  Medical retirement for drilling status did not meet the qualification standards for chapter 33.

		(5)  He must provide the VA with a DD Form 214 or corrected DD Form 214 for any period of Title10 active duty service reflecting he received a disability separation and they would be pleased to correct his records.

	b.  A Post-9/11 GI Bill brochure which advised individuals of the following:

		(1)  They could be eligible if they served at least 90 aggregate days on active duty after 1 September 2001 or were honorably discharged from active duty for a service-connected disability after serving 30 continuous days following 10 September 2001.

		(2)  Individuals serving an aggregate period of active duty after 10 September 2001, of at least 30 continuous days and discharged due to service-connected disability, the percentage of maximum benefits payable was 100%.

13.  Title 10, USC, section 13202, states in time of national emergency declared by the President after 1 January 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months.

14.  VA Federal Benefits for Veterans booklet, 2013 edition, states that to be eligible for Post – 9/11 BI Bill benefits, the member must serve at least 90 aggregate days on active duty after 10 September 2001 and remain on active duty or be honorably discharged.  Active duty includes active service performed by National Guard members under Title 32, USC, for the purpose of organizing, administering, recruiting, instruction, or training the National Guard.

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered on active duty on 1 December 2003 IAW Title 10, USC, section 13203.  He was released from active duty on 17 November 2004.  His 

total active service under Title 10 totaled 353 days.  He was continued on active duty in an AGR status.

2.  He was subsequently seen by his private physician and diagnosed with metastatic papillary thyroid cancer and diabetes mellitus.  On 25 April 2011, the NGB approved an LOD determination for those conditions which occurred during OEF.  An April 2013 PEB recommended his permanent disability retirement with a combined rating of 100%.

3.  He concurred with the PEB and was retired accordingly by reason of disability on 18 September 2013.  

4.  There is no evidence and he provided none showing he was continued on active duty under Title 10, USC after 17 November 2004 or that he should have been transferred to a Title 10 status.  Therefore, there is insufficient evidence to support correction of item 18 of his 2013 DD Form 214 to reflect he was serving on active duty under Title 10 in order to qualify for 100% of the GI Bill education benefits.  

5.  The VA operates under its own policies and procedures.  It is noted that the applicant’s service from 18 November 2004 through 18 September 2013 was on active duty in his AGR status, not in an entry level or skill training status.  While the Board has no jurisdiction over the VA, the applicant may want to verify with the VA that he is being denied 100% of his GI Bill education benefits for the correct reason.

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)                                         AR20140005359





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ABCMR Record of Proceedings (cont)                                         AR20140005359



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