IN THE CASE OF:
BOARD DATE: 17 March 2015
DOCKET NUMBER: AR20140012853
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 correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse prior to being retired from the Regular Army.
2. The applicant states he recently retired from the Army due to a permanent physical disability rated at 60 percent disabling. The Department of Veterans Affairs (VA) rated his disability at 80 percent disabling. His total time in service was 9 years, 7 months, and 25 days. While processing his medical retirement for polycystic kidney and polycystic liver disease, he had very little time to inquire about or to pursue the process needed to request a TEB. Due to his medical limitations at that time, and with frequent emergency room trips to address health issues to include kidney stones, kidney infections, bursting kidney cysts, and gross amounts of blood in his urine, he was placed on a 2 hour duty day restriction as annotated on his medical profile. Additionally, given his duty station was located at Fort Polk, LA and his place of care was at Fort Sam Houston, TX, he was required to travel over 8 hours one way to see medical specialists for various reasons related to his health. The frequency of these appointments along with the number of appointments he was still required to attend locally at Fort Polk to address his health issues, left him with very little time to address any administrative issues related to his TEB. He reached out to an education counselor at Fort Polk, but at the time he (the applicant) was within 90 days of his retirement, and his unit was forward deployed to Afghanistan. Therefore, the available personnel resources were limited in the retention staff section within his Brigade Combat Team to address TEB issues. He truly appreciates the Board taking time to consider his request.
3. The applicant provides copies of:
* Emergency Room Treatment Record, dated 16 February 2013
* A DA Form 3349 (Physical Profile), dated 5 May 2013
* Emergency Room Treatment Record, dated 26 July 2013
* Emergency Room Treatment Record, dated 28 July 2013
* Enlisted Record Brief, dated 5 August 2013
* Integrated Disability Evaluation System (IDES) Narrative Summary (NARSUM), dated 23 August 2013
* A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 28 August 2013
* A DA Form 3349, dated 18 December 2013
* A VA Disability Evaluation System Proposed Rating, dated 27 March 2014
* A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 31 March 2014
* Orders 099-0313, Fort Polk, Louisiana, dated 9 April 2014
* A DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 27 June 2014
* A letter from the VA, providing an estimate of his VA benefits, undated
CONSIDERATION OF EVIDENCE:
1. On 3 November 2004, the applicant enlisted in the Regular Army. He completed training as an electronic warfare specialist and attained the rank of staff sergeant, pay grade E-6 in December 2010.
2. In May 2013, the applicant received a temporary physical profile due to an illness.
3. In August 2013, the applicant underwent an MEB where it was determined that he suffered from the following medical conditions:
* Polycystic kidney disease (failed retention standards)
* Nephrolithiasis
* Hematuria likely due to rupture of renal cyst
* Hypertension
* Lumbar strain
* Bilateral knee strain
* Hypertensive headaches
* Acne vulgaris on back, chest and upper arms
* Status post multiple traumatic brain injuries (TBI) tension headaches
* Bilateral tinnitus
* Recurrent ear infections
* Refractive error, myopia
4. In December 2013, the applicant received a temporary physical profile due to an injury limiting his duty to no more than 2 hours per day.
5. The VA responded on 27 March 2014 to a request for a DES rating made on 11 October 2013. The VA proposed a combined evaluation of 80 percent for service connected disabilities.
6. On 31 March 2014, a PEB convened to determine the applicant's physical fitness for military service. He was found to be unfit due to having polycystic kidney disease. The applicant indicated his concurrence with the PEB finding and signed the form on 1 April 2014.
7. Orders 099-0313, Fort Polk, Louisiana, dated 9 April 2014 announced the applicant's retirement effective 27 June 2014, due to physical disability rated at 60 percent.
8. On 27 June 2014, the applicant was retired due to a permanent physical disability. He received an honorable characterization of service. He had completed 9 years, 7 months, and 25 days of creditable active duty service.
9. Department of Defense Instruction 1341.13, subject: Post-9/11 GI Bill establishes policy for authorizing TEB in accordance with Title 38, U.S. Code, section 3319. It states:
a. The Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance.
b. Any Service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request for TEB under this section, may transfer that entitlement provided he or she meets one of these conditions:
(1) Has at least 6 years of service in the Military Services (active duty or Selected Reserve), on the date of approval and agrees to serve 4 additional years from the date of election.
(2) Has at least 10 years of service in the Military Services (active duty or Selected Reserve), is precluded by either standard policy or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.
(3) Is or becomes retirement eligible during the period from 1 August 2009 through 31 July 2012. (A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service).
(4) On or after 1 August 2013, all members must comply with the requirements listed above pertaining to individuals with 6 or more or 10 or more years of service.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show he transferred his Post 9-11 education benefits to his spouse prior to his retirement because the processing of his medical retirement due to polycystic kidney and polycystic liver disease left him with very little time to inquire about or to pursue the process needed to request a TEB.
2. To be eligible for TEB, a Service member must have at least 6 years of qualifying service and agree to serve for 4 additional years. Service members with at least 10 years of service who are precluded by policy or statute from committing to 4 additional years and agree to serve for the maximum amount of time allowed are also eligible.
3. The applicant completed more than 6 but less than 10 years of service. Therefore, he could only become eligible for TEB by committing to serve for 4 additional years. Unfortunately, he could not meet this eligibility requirement due to his retirement for permanent physical disability. There are no provisions of policy or statute that authorize TEB in his situation. As such, there is no basis for correcting his record to show he transferred his Post 9/11 GI Bill education benefits to his spouse.
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) AR20140009376
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ABCMR Record of Proceedings (cont) AR20140012853
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