IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140019879 


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, reinstatement to an active status so that he may be eligible to transfer his Post-9/11 GI Bill education benefits to his son.

2.  The applicant states:

   a.  He served for 9 years and 4 months and he would still be serving if he had not been honorably medically retired in January 2013.  He served in a Warrior Transition Unit his last year in the Army.  He was notified by his career counselor at the time to go to the MilConnect website and apply to transfer his education benefits to his son.  His transfer was denied by MilConnect for some reason.  Later, his career counsel advised him that he could no longer transfer his Post-9/11 GI Bill benefits because he had been flagged for being overweight.

   b.  He was recently determined to be permanently disabled by the Department of Veterans Affairs and Social Security Administration.  He will not be using any education benefits.  He really needs help resolving this matter.  He has talked to every agency that could possibly assist him and this is his last attempt to transfer the Post-9/11 GI Bill benefits that he rightfully earned.  An injustice was done to him by his career counselor, because he was blown-off and disregarded when it concerned his son's future.  He is desperate to make a bright future for his son.

3.  The applicant provides no additional evidence.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 18 September 2003.  He reenlisted in the RA on 15 November 2007.  He held military occupational specialty 92F (petroleum supply specialist).  

2.  Orders Number 342-0106, issued by Headquarters, 1st Armored Division and Fort Bliss, TX, dated 7 December 2012, placed him on the Temporary Disability Retired List (TDRL) effective 26 January 2013 with a 70 percent (%) disability rating. 

3.  He was honorably released from active duty on 25 January 2013, by reason of temporary disability, and he was placed on the TDRL on 26 January 2013.  He was credited with completing 9 years, 4 months, and 8 days of active service.  

4.  On 17 December 2014, an informal Physical Evaluation Board (PEB) convened and considered his medical conditions of delusional disorder, persecutory type and right shoulder supraspinatus and infraspinatus tendinopathy.  The PEB found him physically unfit and recommended a rating of 100 percent (%).  The PEB recommended his permanent disability retirement.  He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.  The PEB was approved on 8 January 2015.

5.  Orders Number D-08-42, issued by the U.S. Army Physical Disability Agency on 8 January 2015, removed him from the TDRL for permanent disability retirement effective 8 January 2015.

6.  His records contain two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) ending on 10 January 2011 and 10 January 2012 showing he was in compliance with the height/weight standards.  His record is void of any evidence showing he was flagged for being overweight during these periods of service.  

7.  On 29 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill.



8.  DOD Instruction (DODI) Number 1341-13 (Post-9/11 GI Bill) requires that service members with at least 6 years, but less than 10 years of service, agree to an additional 4-year service obligation from the Transfer of Benefits (TEB) request date.  However, Soldiers in this timeframe while in the Integrated Disability Evaluation System (IDES) process are not permitted by the U.S. Army Retention policy to extend or reenlist for the additional 4-year service obligation.  An exception to policy (EPT) to extend or reenlist must be approved.  A Soldier must contact their servicing career counselor to request the initiation of an EPT to extend or reenlist in order to meet the additional service obligation.  The ETP request must be approved and the Soldier must extend or reenlist for the additional 4-year service obligation prior to the PEB finding the Soldier physically unfit on the DA Form 199 (PEB Proceedings), block 9.  Upon ETP approval, the career counselor will assist the Soldier in extending or reenlisting and submitting the TEB request.  All of this must be done prior to the PEB finding the Soldier physically unfit on the DA Form 199.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets for the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating.  The regulation states in:

   a.  Paragraph 3-6 states a Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

   b.  Paragraph 3-9, states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 18 September 2003.  His 2011 and 2012 DA Forms 2166-8 show he was incompliance with the height/weight standards.  There is no evidence of record and he provided none showing was flagged for being overweight and as a result was denied a transfer of his educational benefits to his son.

2.  On 17 December 2014, an informal PEB determined he was physically unfit for further service with a 100% rating.  He was released from active duty on 25 January 2013 and placed on the TDRL on 26 January 2013.  At the time he had completed 9 years, 4 months, and 8 days of active service.  On 8 January 2015, he was removed from the TDRL for permanent disability retirement effective the same date.

3.  At the time of his placement on the TDRL in 2013 he had not completed at least 10 years of service.  Notwithstanding his contentions, it appears based on his integration into the IDES he was not permitted to extend or reenlist for the required additional 4 year service obligation to be eligible to transfer his benefits. In accordance with DODI Number 1341.13, had he requested an ETP prior to his integration into the IDES to extend or reenlist, the ETP must have been approved prior to the PEB finding him unfit.  There is no evidence of record and he provided none showing he had an approved ETP and had extended or reenlisted for the required additional 4 year service obligation prior to the PEB's findings of unfitness.

4.  The requirements of this program are set in the law and any changes to this law are not within the purview of this Board.  There is neither an error nor an injustice in his case and as such, he is not entitled to make a TEB election.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs.

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)                                         AR20140019879



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ABCMR Record of Proceedings (cont)                                         AR20140019879



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