IN THE CASE OF:
BOARD DATE: 6 May 2014
DOCKET NUMBER: AR20130015479
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 approval to transfer educational benefits to his daughter under the Transfer of Education Benefits provision of the Post-9/11 GI Bill.
2. He states he could not complete his 6-year contract to transfer the benefits to his daughter and he is unable to use the benefits.
3. He provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* milConnect document
* Support statement
* Orders 316-0128, dated 12 November 2009
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Department of Veterans Affairs (VA) letter, dated 20 June 2012
* U.S. Army Human Resources Command (HRC) letter, dated 6 December 2011
* Progress Notes
* Milwaukee Institute of Art and Design document, dated 24 July 2013
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. After having prior service in the Regular Army, U.S. Army Reserve, and Army National Guard, on 25 January 2006, the applicant enlisted in the Regular Army. He served through multiple enlistments/reenlistments and served in Iraq from 14 May 2003 to 5 January 2004 and 4 October 2006 to 8 December 2007.
3. The applicant's PEB shows that on 29 September 2009 the PEB found him physically unfit and recommended a combined disability rating of 60 percent (%) for post-traumatic stress disorder. On 16 October 2009, he concurred with the PEB's recommendation.
4. On 2 February 2010, he was placed on the Temporary Disability Retired List (TDRL) in the rank of sergeant/E-5. He was credited with completing 11 years and 19 days of active service.
5. A milConnect status document shows that on 2 February 2010 he requested to transfer education benefits to his daughter. However, his request was disapproved and the reason cited was "Service Member has not committed to the required additional service time."
6. The applicant provided numerous documents that verify he was diagnosed with a traumatic brain injury and was awarded a 10% disability rating from HRC for combat-related special compensation. Additionally, the VA letter shows he received an overall/combined disability rating of 90%, but he was being paid at a 100% disability rate due to unemployability.
7. On 20 March 2013, he was removed from the TDRL and permanently retired with a 70% disability rating. He was credited with completing 11 years and 19 days of active duty service.
8. The applicant provides a letter from his spouse who states that the applicant has brain damage and he is not capable of holding a job or going to school. She maintains that he was injured in Iraq while deployed. She adds there is no good reason to deny his daughter the education benefits since she is the one who will be responsible for the applicant's care if something happens to her.
9. 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.
10. 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant applied to transfer his educational benefits to his dependent on 2 February 2010. It further shows that at the time of his request, he had over 10 years of active duty service and he was precluded from committing an additional 4 years due to his retirement for disability.
2. In accordance with the DOD policy, as cited above, a Soldier with at least 10 years of service in the Armed Forces on the date of election who is precluded by either standard policy or statute from committing to 4 additional years, and agrees to serve the maximum amount of time allowed, is eligible to transfer his educational benefits under the provision of the Post-9/11 GI Bill. Therefore, it would be appropriate to correct his records accordingly.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant submitted a request for an exception to policy to commit to an additional 4 years in a timely manner, his request was granted, and the Army approved his timely request to transfer his Post 9/11 GI Bill benefits to his dependent, provided all other program eligibility criteria are met.
_______ _ __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.
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