PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            19 December 2002
	DOCKET NUMBER:   AR2002075211

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Powers		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous application to convert his enrollment in the Veterans Educational Assistance Program (VEAP) to the Montgomery GI Bill (MGIB).

3.  The applicant states, in effect, that he is being unjustly denied the opportunity to convert his enrollment in the VEAP to the MGIB, a benefit that he would have been afforded had he not been seriously injured in the line of duty and subsequently placed on the Temporary Disability Retired List (TDRL) during the time prescribed as the eligibility window.

4.  The Memorandum of Consideration (MOC) of the Board’s 24 January 2002 review of the case (AR2001064494) is incorporated herein by reference as if wholly set forth.

5.  The applicant’s submission is new evidence and/or argument that requires Board consideration.

6.  He was commissioned as a United States Army second lieutenant on 20 December 1983 and entered active duty on 26 January 1984.  He was promoted to the rank of major in the Regular Army on 1 August 1995.

7.  On 30 November 1995, while running as part of his physical training, he was hit by a car and suffered extensive injuries.  As a result of his injuries, he was placed on the TDRL effective 3 December 1995, while still admitted to the hospital.  

8.  On 1 August 1998, after serving 33 months on the TDRL, he was determined to be fit for duty and was ordered to active duty.

9.  Public Law 106-419 (Veterans Benefits and Health Care Improvement Act of 2000) authorizes participants in the VEAP who have continuously served on active duty since 9 October 1996 through 1 April 2000, to convert to the MGIB Program.  The law provided a 1-year enrollment period and requires monthly pay reductions to cover program costs.  The established deadline for conversion from the VEAP to the MGIB was no later than 31 October 2001.  The Bill also provided eligible members who had separated since 1 April 2000, before the Bill was passed an opportunity to convert to the MGIB with a buy in cost.

CONCLUSIONS:

1.  Although the applicant’s request was properly denied in accordance with the strict interpretation of the law, which required individuals to be serving continuously on active duty during the period of 9 October 1996 to 1 April 2000, the Board is convinced, after reviewing his records and considering his new argument, that as a matter of equity and justice, he should be afforded the opportunity to convert his VEAP to the MGIB. 

2.  The Board agrees that had he not been seriously injured and transferred to the TDRL, he would have been afforded the opportunity to do so had he remained on active duty.  Inasmuch as there is no indication that he would have left active duty voluntarily prior to attaining eligibility and since he did return to active duty after being released from the TDRL, the Board finds that he should be granted an exception to policy to convert from the VEAP to the MGIB, provided he does so within 90 days of notification from the Defense Finance and Accounting Service (DFAS).

3.  While the law is very specific that he had to be on active duty during the period in question, the Board believes that this is a situation that was either not considered or was not addressed, at the time Congress passed the law.  In any event, Congress does not have a history of knowingly passing legislation that intentionally denies a soldier an improved benefit simply because they were hurt while on active duty and could not take advantage of the benefit.  The circumstances in his case are exceptional and compassion is warranted in this case.

4.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned is authorized, as an exception to policy, to convert his VEAP account to the MGIB, provided he does so within 90 days of notification by the DFAS. 

BOARD VOTE:

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2002075211	
SUFFIX		
RECON		
DATE BOARDED	2002/12/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  1018	103.0100/ED BENEFITS	
2.		
3.		
4.		
5.		
6.