IN THE CASE OF:
BOARD DATE: 1 May 2014
DOCKET NUMBER: AR20130015376
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 transfer of educational benefits to her dependent children under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. She states she was denied the right to transfer her benefits to her dependent sons. She signed a declination statement and she was counseled concerning the consequences of signing the declination, but there was no mention of her not qualifying to transfer her educational benefits. Since she retired, she is unable to have stable jobs and, therefore, is unable to pay for her children's education. She gave the military 13 years and was retired with an 80 percent (%) disability rating for post-traumatic stress disorder.
3. She provides:
* Orders 179-0148, dated 27 June 2012
* DA Form 4991-R (Declination of Continued Service Statement (DCSS)), dated 7 February 2011
* Emails
* Memorandum, Subject: Exception to Policy (ETP), Applicant, dated
27 July 2012
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 December 1999. She served in Iraq from 15 May 2008 to 15 August 2009.
2. On 7 February 2011, the applicant signed a DCSS establishing her expiration term of service (ETS) as 16 December 2011. Her ETS was later adjusted to
16 December 2012 for physical disability processing.
3. On 2 May 2012, a Physical Evaluation Board (PEB) found her physically unfit and recommended a combined disability rating of 80% for post-traumatic stress disorder, degenerative arthritis of the lumbar spine, and right lower extremity radiculopathy. On 5 June 2012, she concurred with the PEB's findings.
4. On 27 July 2012, the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, responded to the applicant's request for an ETP to transfer her educational benefits to her dependent children under the TEB provision of the Post-9/11 GI Bill. The G-1 representative disapproved her request and said she was not eligible to transfer her benefits due to her signing a DCSS. He stated that she was approved for a separation due to a medical disability with an effective date of 28 August 2012, but was still not otherwise eligible.
5. On 9 August 2012, the applicant requested assistance in finding out more information regarding the DCSS she signed when she was placed on assignment instructions to Fort Jackson, SC. She said if she would have been aware that this would have interfered with her transferring her educational benefits to her sons, she would have thought about it twice.
6. On 28 August 2012, she was placed on the Temporary Disability Retired List in the grade of staff sergeant/E-6. She was credited with completing 12 years,
8 months, and 1 day of creditable active service.
7. On 22 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 an eligible member is 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) 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 the maximum amount of time allowed by such policy or statute; or
c. is or becomes retirement eligible during the period 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. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service, individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.
9. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for administration of the program.
10. DOD, the Army, and the Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that on 7 February 2011 the applicant signed a DCSS establishing her ETS as 16 December 2011, which was later adjusted to 16 December 2012 for physical disability processing. In accordance with the DOD policy, as cited above, she was required to serve 4 additional years in the Armed Forces from the date she elected to transfer her educational benefits to her dependents. This could not have occurred because of the DCSS.
2. Further, her argument that she was not informed of the consequences of signing the DCSS is not sufficient as a basis to approve her request. The DOD, the VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.
3. There are no provisions under the TEB that allow the 4-year active duty service obligation to be waived when the Soldier signed a DCSS so as not to be required to perform a permanent change of station move.
4. The applicants service medical records are not available, nor are any of her post-deployment medical assessments that might have shown any PTSD symptoms or other medical conditions after her return from deployment. At this time, there is insufficient evidence that would warrant granting the requested relief.
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) AR20130015376
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ABCMR Record of Proceedings (cont) AR20130015376
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