IN THE CASE OF:	  

		BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140005002 


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, in effect, an exception to policy to transfer educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his beneficiaries.

2.  The applicant states:

* he did not know that he had to complete the [submission] on milConnect to complete the transfer 
* he would have completed the transfer before he was medically retired if he had known that the transfers were not enforced
* he retired for medical reasons with 17 years and 8 months of service 
* he applied for his children to be the beneficiaries of his Post 9-11 GI Bill in June 2011 and thought everything was OK since he did not receive a hard confirmation copy
* when his children tried to use the education benefits in 2014, they were denied by the Department of Veterans Affairs (VA); the VA informed him that there was no record of the transfer
* if he had known this, he would have done what was required before August 2013 when the new laws took effect
* he would have also done so before he was medically retired despite the difficulty in dealing with many medical issues

3.  The applicant provides: 

* His own VA Certificate of Eligibility
* Retirement orders 010-0006, dated 10 January 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Printout of DMDC Submit Transfer Request
* Letters, dated 14 January 2014 from the VA to his two children

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 6 September 1995 and he held military occupational specialty 91C (Practical Nurse).  He served through multiple extensions or reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

2.  On 6 October 2008, he was ordered to active duty in support of Operation Iraqi Freedom for a period of 400 days, beginning on or about 18 November 2008.  He entered active duty on 18 November 2008.  He served in Iraq from 8 December 2008 to 3 November 2009. 

3.  On 22 December 2009, he was retained on active duty to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care.  He was assigned to the Warrior Transition Unit, Fort Dix, NJ, for a period of 358 days. 

4.  On 3 February 2010, he was diagnosed with various medical conditions, including post-traumatic stress disorder, osteoarthritis, and other maladies that were determined to be in line of duty and warranted his entry into the Army disability evaluation system. 

5.  On 6 October 2011, his orders were amended to retain him on active duty through 3 January 2012, and on 11 May 2012 the orders were further amended to retain him through 29 November 2012.  

6.  Meanwhile, on 18 July 2012, a physical evaluation board (PEB) convened and found him medically unfit for service due to post-traumatic stress disorder, degenerative joint disease of the left knee, degenerative joint disease of the right knee, and lumbar spondylosis.  The PEB recommended a combined rating of 80 percent and permanent disability retirement.  He concurred. 

7.  On 4 January 2013, he underwent pre-separation counseling.  His DD Form 2648-1 (Transition Assistance Program (TAP) Checklist for Deactivating/ Demobilizing National Guard and Reserve Service Members) shows in item 14 (Education/Training) he answered in the negative regarding the need for additional counseling for education benefits (Post 9-11 GI Bill). 

8.  On 10 January 2013, Headquarters, U.S. Army Garrison, Fort Meade, MD published Orders 110-0006 releasing him from active duty on 9 May 2013 and placing him on the permanent retired list in his retired rank/grade of SFC/E-7 on 10 May 2013. 

9.  He retired on 9 May 2013.  His DD Form 214 shows he completed 4 years, 5 months, and 22 days of active service during the period covered by the DD Form 214 and he had 2 years, 4 months, and 15 days of prior active service. 

10.  He provides: 

	a.  A Certificate of Eligibility for the Post 9-11 GI Bill benefits, issued by the VA on 31 March 2013, indicating he had 36 months of full-time education benefits. 

	b.  Two letters, issued on 17 January 2014 to his children, Caleb and Lydia, informing them that the VA had no proof that the applicant had applied for the transferability program through the TEB website. 

	c.  A DMDC Submit Transfer Request, dated (appears) 7 June 2011.  This document shows he selected the Post 9-11 GI Bill, chapter 33 and listed his two children, Caleb (born in 1993) and Lydia (born in 1995).  He checked/acknowledged all the blocks regarding the transferability of education benefits; however, it is unclear if he submitted this request. 

11.  The applicant's account in the Soldier Management System, Interactive Web Service, U.S. Army Human Resources Command, shows two entries were made pertaining to his Post 9/11 GI Bill transfer: 

* 28 June 2011, an official at HRC Education Incentive Branch entered the comment "TEB request pending for extension/reenlistment document"
* 21 July 2011, an official at HRC Education Incentive Branch entered the comment "Documents not received; request disapproved"

12.  Public Law 110-252, as amended by Public Law 111-377, identifies the qualification to receive the Post-9/11 GI Bill, one of which is that the service member must have performed on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill.  Public Law 110-252 establishes legal requirements on the transferability of unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

13.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 18 November 2008 to 9 May 2013.  He entered the disability evaluation system on or about 3 February 2010.  He appears to have submitted a request for the transfer of benefits on or about 
7 June 2011.  It also appears at the time he did not meet the criteria on the date of election (which would have required him to agree to serve 4 additional years in the Armed Forces from the date of election) and his request was contingent upon his extension or reenlistments to meet the service remaining requirements for eligibility.  Since he did not extend or reenlist, his request was disapproved. 

2.  However, he was undergoing disability processing at the time, and when his processing concluded he was recommended for permanent disability retirement. He retired on 9 May 2013.  At the time of his retirement, he had completed 4 years, 5 months, and 22 days of active service during the period covered by the DD Form 214 and he had 2 years, 4 months, and 15 days of prior active service, for a total of 6 years, 10 months, and 7 days of active service and over 17 years of total service.

3.  Additionally, at the time of his submission in June 2011, he had completed over 10 years of service in the Armed Forces (active duty and/or Selected Reserve) and due to disability processing, he was precluded from committing to 4 additional years.
4.  Given the applicant's submission of the TEB transfer while on active duty and given his disability processing, it appears he met the criteria to transfer the educational benefits to his eligible family member(s).  Therefore, as a matter of equity, he is entitled to the requested relief. 

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 filed his application and the Army approved his request to transfer Post 9/11 GI Bill benefits to his dependents prior to his retirement, 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)                                         AR20140005002



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ABCMR Record of Proceedings (cont)                                         AR20140005002



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