IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130021125 


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 (ETP) to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post 9/11 GI Bill.

2.  The applicant states, in effect, that his request to transfer his education benefits to his dependents was rejected by the U.S. Army Human Resources Command (HRC) several weeks after his request was submitted.  It was rejected because he did not have sufficient time in service remaining due to undergoing a medical board for combat-related injuries.  He goes on to state that he was not made aware of the disapproval until September 2013 and was subsequently informed that he should apply to the Board for an ETP.

3.  The applicant provides continuation sheets to explain his application, a recommendation for approval from his brigade commander, a page from his TEB application, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 November 2005 for a period of 3 years and 18 weeks and training as an infantryman.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Hawaii for his first assignment.

2.  His records show that he deployed to Iraq during the periods 20071206 – 20090226 and 20100621 – 20110620.  He was assigned to Fort Hood, Texas when he was honorably retired on 28 November 2013 under the provisions of Army Regulation 635-200, chapter 4, by reason of disability, permanent (enhanced).  He had served 8 years and 19 days of active service and was given a 30% disability rating. 

3.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.

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

	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.

5.  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.

6.  On 7 January 2013, All Army Activities (ALARACT) Message 003/2013 was disseminated to the force.  It states, in part, that active duty Soldiers are entitled to Post 9/11 GI Bill benefits.  TEB to dependents is not an entitlement.  By law, the purpose of the TEB is to enhance both recruiting and retention in the service.  Soldiers must agree to an associated additional service obligation in order to transfer their education benefits to their dependents after 1 August 2013.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to transfer his education benefits to his dependents has been noted.  The program was implemented on 1 August 2009 and the applicant was medically retired 4 years later.

2.  The laws and policies governing the TEB provide that service members must make the election to TEB prior to separation from the service and they must have 6 years of service and agree to serve an additional 4 years.  

3.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level and through many public information sites.  Therefore, it is reasonable to presume that he was aware that he could transfer his benefits to his dependents while on active duty provided he met the criteria for TEB.

4.  The evidence of record shows the applicant was medically retired 4 years after the implementation of the program.  However, the applicant could not agree to serve the additional time required due to his medical retirement, he did not yet have 10 years of service, and therefore was not eligible to transfer his benefits to his dependents.  Accordingly, his request was properly denied in accordance with the laws and regulations governing the TEB.

5.  While it is indeed unfortunate that the applicant was not eligible to transfer his education benefits to his dependents due to a medical retirement, that in itself is not sufficient to grant his request and to do so would afford him a benefit not afforded others in similar circumstances.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x____  ___x____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20130021125





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ABCMR Record of Proceedings (cont)                                         AR20130021125



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