IN THE CASE OF:	  

		BOARD DATE:	    21 November 2013

		DOCKET NUMBER:  AR20130019052 


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 under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse.

2.  The applicant states he was undergoing a medical evaluation board (MEB) for post-traumatic stress disorder (PTSD) and Major Depressive Disorder when he initiated a transfer of benefits to his spouse.  He started the transfer during February 2013.  His career counselor did not counsel him on the requirements for the Post 9/11 TEB until his request had been denied.  He received his retirement orders in late May 2013.  He believes the new rules regarding the additional service requirement were enacted after he initially attempted the transfer.  He was medically retired with 8 years and 6 months service; therefore, he could not complete the minimum 10 year agreement or the additional 4 years.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 February 2005 and retired on 21 August 2013, due to a temporary disability in the rank/grade of staff sergeant/E-6.  He completed 8 years, 6 months, and 20 days of creditable service.

2.  The Total Army Personnel Data Base (TAPDB) shows the U.S. Army Human Resources Command (HRC) entered the following transactions in TAPDB in reference to his request for Post 9/11 GI Bill on:

	a.  15 May 2013, an HRC official stated his TEB request was pending due to insufficient retainability.

	b.  30 May 2013, an HRC official stated his expiration term of service (ETS) had not been updated; therefore, his request was disapproved.

	c.  8 July 2013, an HRC official stated that he had called about the Post-9/11 GI Bill TEB.

	d.  14 August 2013, an HRC official stated his TEB request had been disapproved due to insufficient retainability prior to his separation date.

	e.  15 August 2013, an HRC official stated he had called and said his request should not have been disapproved because he went through an MEB and was separated due to medical disability.  He explained to the HRC official that he had less than 10 years of service and needed to have an exception to policy (ETP) approved before his retirement orders were issued.  He also stated his career counselor was not aware he needed a ETP until after he received his first disapproval from HRC via email in May 2013.  Upon his receipt of this disapproval his career counselor called Army G-1 and the Army G-1 offered an explanation; however, he already had his retirement orders at that time.  He said his career counselor informed him it would take two months for the ETP to process and by then he would already be retired.  His career counselor further stated that since he had his retirement orders he no longer needed an ETP.  His career counselor told him that if he contacted HRC and sent a copy of his retirement orders he would be approved for the Post 9/11 GI Bill TEB.  Based on his career counselor's guidance he submitted a new request and spoke to an HRC official who directed him to fax his separation orders and told him that because it was a medical separation his request would be approved.  However, the HRC official he spoke to may have mistaken active duty procedures for the Reserve procedures and provided incorrect information.

3.  The Defense Manpower Data Center (DMDC) data base shows the applicant requested TEB of the Post-9/11 GI Bill on 18 April 2013 and again on 5 July 2013.  On each occasion his request was disapproved because he had not committed to the required additional service time.

4.  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 individual 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 for the maximum amount of time allowed by such policy or statute; or

5.  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’s request to transfer his Post-9/11 GI Bill benefits was disapproved because he would have incurred a 4-year service obligation upon his TEB request.  He did request to transfer his benefits before leaving military service, but he did not commit to the service obligation.  He required an ETP to waive the additional service requirement because he was being medically retired and; therefore, unable to meet the additional service requirement.  

2.  It appears that the career counselor advising him was confused about requirements for the ETP; therefore, an ETP to waive the additional 4-year requirement was not requested or processed.  Once his retirement orders were issued he was no longer eligible by law to commit to the additional service obligation.  The available evidence shows the applicant retired due to a temporary disability effective 21 August 2013.

3.  As there is evidence that the applicant did attempt to transfer the benefits to his spouse, and there is also evidence that his career counselor was unaware of many of the requirements concerning the request for and processing of an EPT.  Therefore, as a matter of equity, his records should be corrected to show he submitted an ETP to waive the commitment to the additional service and the request was granted.  

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 exception to policy to waive the commitment to an additional 4 years of service in a timely manner, the request was granted, and that the Army approved his request to transfer Post-9/11 GI Bill benefits to his spouse, 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.



ABCMR Record of Proceedings (cont)                                         AR20130019052





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ABCMR Record of Proceedings (cont)                                         AR20130019052



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