BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140002008 


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

2.  The applicant states he was being medically boarded during the time the Post 9-11 GI Bill was approved and implemented.  His medical condition is called Neurosarcoidosis, and it impacted his cognitive ability.  The impairment impeded his ability to make personal and professional decisions.  He was permanently retired by reason of disability. 

3.  The applicant provides:

* Two letters from a Clinical Neuropsychologist 
* A letter from another officer
* Officer Evaluation Report decision by the Army Special Review Board (ASRB)
* Medical Evaluation Board (MEB) Narrative Summary
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Form 696 (Declaration of Status of Dependents)

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.  Having had prior active and inactive service, the applicant was appointed as a Reserve warrant officer of the Army with concurrent call to active duty and executed an oath of office on 20 December 1996.  

3.  He served in a variety of stateside and/or overseas assignments and he attained the rank of chief warrant officer three (CW3).  

4.  On 30 January 2009, a physical evaluation board (PEB) considered his unfitting condition of Neurosarcoidosis and recommended his permanent retirement at the rate of 100 percent.  He concurred; however, he requested a change to his retirement date from 14 June 2009 to 31 July 2009 in order to take leave.  

5.  He retired on 31 July 2009 and he was placed on the Retired List in the rank of CW3 by reason of permanent disability on 1 August 2009.  He completed nearly 23 years of active service (enlisted and warrant officer service). 

6.  He provides: 

	a.  Two letters, dated 28 December 2013 and 11 December 2008, from a clinical neuropsychologist who described his medical condition and previously recommended removal of his OER.  This individual now recommends he be allowed to transfer the Post 9-11 GI Bill benefits. 

	b.  A statement from another officer who also describes the applicant's medical condition and supported removal of an OER from his records. 

	c.  A decision, dated 23 July 2009, by the ASRB approving the removal of an OER from his records. 

	d.  An MEB Narrative Summary, dated 11 January 2009, clarifying his condition and discussing the difficulties in retraining and learning new skills. 

7.   On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 (i.e., qualifying service)) 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 from 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.  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.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty as a warrant officer from 20 December 1996 to 31 July 2009.  The law requires a member to be serving on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer.  

2.  The applicant was neither on active duty nor in the Selected Reserve when the program was implemented.  Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill.

3.  Notwithstanding his medical condition, the requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is neither an error nor an injustice in his case and, as such, he is not entitled to the requested relief.  In view of the foregoing, there is no 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:

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)                                         AR20140002008





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ABCMR Record of Proceedings (cont)                                         AR20140002008



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