IN THE CASE OF:
BOARD DATE: 20 May 2014
DOCKET NUMBER: AR20130015320
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 an exception to policy to transfer educational benefits to his family member (spouse) under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states:
a. the law did not come into effect until August 2009; however, no one advised him that he could transfer this educational benefits; and
b. he understands he is still entitled to one full year of funding and he would like to transfer this benefit to his wife who is one year shy of obtaining her degree in nursing but she has exhausted her loans.
3. The applicant provides:
* Department of Veterans Affairs (VA) Form 210-138 (Statement in Support of Claim)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 17 May 2007
* Temporary Disability Retirement List (TDRL) memorandum, dated 20 April 2011
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having had prior service in the U.S. Marine Corps Reserve and the New Jersey Army National Guard (8 November 2000 to 8 September 2002), the applicant enlisted in the U.S. Army Reserve (USAR) on 5 November 2004 and he held military occupational specialty 68W (Health Care Specialist).
3. On 28 February 2006, he was ordered to active duty and subsequently served in Iraq from 16 April 2006 to 15 April 2007. He was honorably released from active duty on 17 May 2007.
4. On 29 September 2009, a physical evaluation board (PEB) considered his conditions of post-traumatic stress disorder, residuals of traumatic brain injury, and arthritis, and rated those conditions at a combined rating of 70 percent. The PEB recommended his placement on the TDRL.
5. He was honorably retired on 24 November 2009 from his Selected Reserve unit and he was placed on the TDRL on 25 November 2009 by reason of temporary disability.
6. He was considered by a TDRL PEB on 16 August 2011. The TDRL PEB recommended permanent disability retirement. Accordingly, he was removed from the TDRL on 23 September 2011 and permanently retired on 24 September 2011.
7. On 22 June 2009, 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 the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and:
a. has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or
b. has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve (i.e., qualifying service)) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or
c. is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013. 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.
8. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.
DISCUSSION AND CONCLUSIONS:
The applicant was placed on the TDRL on 24 November 2009. He completed 1 year, 2 months, and 20 days of active duty and 7 years, 9 months, and 8 days of inactive service, for a total of 8 years, 11 months, and 28 days of active/inactive service. There is no evidence of record to show he had 10 qualifying years of service at the time he was retired from the Selected Reserve. Therefore, it appears he was not eligible to transfer his educational benefits under the TEB prior to retirement.
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) AR20130015320
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