IN THE CASE OF: 

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20140010423 


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 his military records to show entitlement to the Post 9/11 GI Bill benefits for himself. 

2.  The applicant states:

* he was pending determination by the integrated disability evaluation system (IDES) and he received a determination of disability and ultimate retirement
* the date he retired from active duty by reason of disability precludes him from receiving Post 9/11 GI Bill benefits from the Department of Veterans Affairs (VA)

3.  The applicant provides: 

* DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings)
* VA rating decision (service-connection)
* VA letters (Post 9/11 GI Bill)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retirement orders

CONSIDERATION OF EVIDENCE:

1.  The applicant executed a U.S. Military Academy (USMA) Supplemental Cadet Service Agreement - Branch for Service Program on 23 May 2009.  This agreement specified and recorded the contractual agreements and obligations for participation in the Army Branch for Service Program.  He acknowledged his understanding and agreement as follows :

	a.  He understood that the additional duty service obligation (ADSO) incurred pursuant to the Army Branch for Service Program as stated above will be in addition to the initial 5-year ADSO he incurred pursuant to Title 10, U.S. Code (USC), section 4348, Army Regulation 350-100 (Officer Active Duty Service Obligation), and the terms of his USMA contract (USMA Form 5-50).  He further understood that the ADSO incurred pursuant to the Army Branch for Service Program as stated above is in addition to, and must be served consecutively with, any other ADSO he may have incurred pursuant to the Army’s Graduate School or Post for Service Programs.

	b.  He understood that the ADSO incurred pursuant to the Army Branch for Service Program will be served consecutively and not concurrently with his initial 5 year ADSO and will begin on the day after his initial 5-year ADSO is completed. If he is branched Aviation, this ADSO will begin upon completion of his flight training ADSO.  Thereafter, the ADSO incurred pursuant to the Army Branch for Service Program will be served concurrently with any other non-statutory ADSOs, unless otherwise provided by law or contract.

2.  The applicant was appointed as a Regular Army Field Artillery officer and he executed an oath of office on 23 May 2009.  He completed the Basic Officer Leader Course.  

3.  He was assigned to the 1st Battalion, 505th Infantry Regiment, Fort Bragg, NC, and he served in Afghanistan from 25 June to 24 August 2011.  He was promoted to captain on 1 December 2012. 

4.  He was involved in an improvised explosive device incident in Afghanistan on 17 August 2011.  On 22 January 2014, as part of the IDES, a PEB considered his medical conditions and rated his conditions at a combined rating of 60 percent and recommended his permanent retirement.  

5.  On 27 January 2014, the VA awarded him service-connected disability compensation for various service-connected disabilities. 

6.  On 28 January 2014, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  He also did not request reconsideration of his VA findings. 

7.  On 9 April 2014, by letter, the VA notified him that his claim for education benefits under the provisions of the Post 9/11 GI Bill could not be approved because he did not have sufficient active duty service after 10 September 2001. 

8.  On 23 April 2014, again by letter, the VA notified him that his claim was denied because he had insufficient qualifying active duty service after 
10 September 2001.  Generally, he must have an aggregate of 90 days of qualifying active duty service or be discharged for disability after serving 30 continuous days of active duty.  Additionally: 

	a.  In accordance with Title 38, USC, section 331(d)(2) a period of service shall not be considered a part of the period of active duty on which an individual's entitlement to educational assistance under this chapter is based [if] a period of service on active duty of an officer [is] pursuant to an agreement under section 4348 of Title 10, USC, or section 182 of Title 14, USC. 

	b.  The USMA Supplemental Cadet Service Agreement, signed by him (the applicant) on 23 May 2009, placed him under the authority of Title 10, USC, section 4348, and as stated above, his active duty service shall not be considered a part of the period of active duty to establish eligibility under any of the VA programs administered by the VA. 

9.  He retired on 28 April 2014 and he was placed on the Retired List in his retired grade of CPT on 29 April 2014.  He completed 4 years, 11 months, and 6 days of creditable active service.  

10.  Title 10, USC, section 4348 (Cadets, Agreement to Service as Officer) states:

	a.  Section 4348(a), each cadet shall sign an agreement with respect to the cadet’s length of service in the armed forces.  The agreement shall provide that the cadet agrees to the following:  (1) That the cadet will complete the course of instruction at the Academy; that upon graduation from the Academy the cadet (A) will accept an appointment, if tendered, as a commissioned officer of the Regular Army or the Regular Air Force; and (B) will serve on active duty for at least five years immediately after such appointment.

	b.  Section 4348(d), in this section, the term "commissioned service obligation," with respect to an officer who is a graduate of the Academy, means the period beginning on the date of the officer’s appointment as a commissioned officer and ending on the sixth anniversary of such appointment or, at the discretion of the Secretary of Defense, any later date up to the eighth anniversary of such appointment.
11.  Title 38, USC, section 3311 (Educational assistance for service in the Armed Forces commencing on or after 11 September 2001: entitlement), states: 

	a.  Section 3311(b) (Covered Individuals), an individual described in this subsection is any individual as follows: 

		(1)  An individual who (A) commencing on or after 11 September 2001, serves an aggregate of at least 36 months on active duty in the Armed Forces (including service on active duty in entry level and skill training); and (B) after completion of service described in subparagraph (A)(i) continues on active duty; or (ii) is discharged or released from active duty as described in subsection (c).  

		(2) An individual who (A) commencing on or after 11 September 2001, serves at least 30 continuous days on active duty in the Armed Forces; and (B) after completion of service described in subparagraph (A), is discharged or released from active duty in the Armed Forces for a service-connected disability.

	b.  Section 3311(d) (Prohibition on Treatment of Certain Service as Period of Active Duty), the following periods of service shall not be considered a part of the period of active duty on which an individual’s entitlement to educational assistance under this chapter is based: 

		(1)  A period of service on active duty of an officer pursuant to an agreement under section 2107(b) of Title 10.  

		(2)  A period of service on active duty of an officer pursuant to an agreement under section 4348, 6959, or 9348 of Title 10 or section 182 of Title 14.  

		(3)  A period of service that is terminated because of a defective enlistment and induction based on (A) the individual’s being a minor for purposes of service in the Armed Forces; (B) an erroneous enlistment or induction; or (C) a defective enlistment agreement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a USMA cadet, served on active duty from 23 May 2009 to 
28 April 2014.  He retired by reason of disability.  He completed 4 years, 11 months, and 28 days of active service.  By law, the first 5 years of active duty of an academy cadet is not qualifying for Post 9/11 GI Bill benefits.  

2.  In order to be entitled to benefits under this program, he would have had to have completed the first 5 years of active duty and since he was retired by reason of disability, he would have needed an additional 30 consecutive days of active service.  

3.  Entitlements to the Post 9/11 GI Bill are governed by statute and any changes to the law are not within the purview of this Board.  From a statutory and regulatory standpoint, he is ineligible for the Post 9/11 GI Bill.  From an equity standpoint, he is also ineligible for a benefit that is otherwise not available to other Soldiers in similar circumstances. 

4.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that relief should be granted.

2.  The Board believed that the applicant was improperly counseled concerning the possible loss of other benefits he may incur by either not appealing the findings of the PEB and requesting a formal hearing or not requesting reconsideration of his VA ratings.

3.  The applicant entered active duty on 23 May 2009 with a 5-year ADSO.  He would have required only an additional 30 days (i.e., a retirement date of 23 June 2014) for entitlement to the Post 9/11 GI Bill benefits for himself.  He was retired on 28 April 2014, less than 40 days before he became eligible for those benefits.  

4.  Given the short period of extra active duty he needed to qualify for those benefits, the Board believed he should have been counseled to appeal the findings of the PEB and request a formal hearing and/or request reconsideration of his VA ratings.  The Board believed it would then have been very likely that he would have been retained on active duty at least an additional 40 days to accomplish those requests, thus making him eligible for the Post 9/11 GI Bill benefits for himself.

5.  However, it is acknowledged that the applicant did not serve on active duty for those additional days.  Therefore, it would be appropriate to show he was on an excess leave without pay and allowances status during that short period of time.

6.  Therefore, the Board determined that the evidence presented is 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 showing he was retired by reason of permanent disability on 23 June 2014 and was in an excess leave without pay and allowances status from 28 April through 23 June 2014.



      _______ _   _______   ___
               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)                                         AR20140010423



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ABCMR Record of Proceedings (cont)                                         AR20140010423



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