IN THE CASE OF:	  

		BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20130021745 


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 correction of his records to show he applied to transfer his educational benefits to his daughter under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill before he left active duty on 17 August 2010.

2.  The applicant states that he was in the hospital with a traumatic brain injury (TBI) and could not comprehend well enough to make the transfer.  He goes on to state that he is 100% unemployable and can never use his benefits.  He desires to transfer his benefits to his daughter. 

3.  The applicant provides copies of a letter recommending removal from the Temporary Disability Retired List (TDRL), Physical Evaluation Board (PEB) Proceedings that permanently retired him, and his Department of Veterans Affairs (VA) Rating Decision.

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.  The applicant enlisted in the Regular Army on 3 February 1987.  He completed his training as an infantryman and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 as a Special Forces senior sergeant on 1 May 2004.

3.  The applicant’s records show that during the period 1 June 2009 to 31 May 2010, the applicant was serving as a senior military science instructor at the University of Guam and he received essentially a maximum Noncommissioned Officer Evaluation Report (NCOER).

4.  His records show that he made the following deployments:

* Iraq 20030224 – 20030501 and 20050818 - 20050906
* Afghanistan 20030910 – 20040313, 20050605 – 20050814, 20060104 – 20060516 and 20060815- 20070501

5.  On 13 May 2010, a PEB convened at Fort Lewis, Washington and determined that he was 80% service-connected for post-traumatic stress disorder (PTSD), residuals of TBI, left arm limitation of motion, spinal fusion, and degenerative arthritis of thoracolumbar spine and recommended that he be placed on the TDRL.

6.  On 17 August 2010, he was honorably retired by reason of temporary disability.  He had served 23 years, 6 months, and 15 days of active service.

7.  On 27 July 2011, a PEB convened in Washington, D.C. which determined that he should be permanently retired with a 100% service-connected disability rating.

8.  In previous cases processed by the Board, information was obtained from the Chief, Enlisted Professional Development Branch, Department of the Army Office of the Deputy Chief of Staff, G-1, which indicated that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service or started transition leave during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service.

9.  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 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

10.  Section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to show he applied for and the Army approved transfer of his educational benefits under the TEB provision of the Post-9/11 GI Bill to his dependents prior to his retirement from active duty was carefully considered.

2.  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. 

3.  The evidence of record shows the applicant was placed on the TDRL 1 year after the implementation of the program.  However, there is no evidence of record and the applicant did not provide sufficient evidence that shows he was advised he could not transfer his education benefits to his family members prior to leaving active duty or that he was incapable of doing so.  It is also noted that he was successfully serving as an instructor at a university during that first year of implementation of the program.

4.  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)                                         AR20130021745



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ABCMR Record of Proceedings (cont)                                         AR20130021745



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