IN THE CASE OF:	 

		BOARD DATE:	 9 December 2014 

		DOCKET NUMBER:  AR20140007203 


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 his Post-9/11 GI Bill education benefits to his dependents.

2.  The applicant states he was eligible to transfer his Post-9/11 GI Bill benefits while he was on active duty.  He was told that he could transfer the benefits when he was demobilized to that of active drilling in the Army National Guard (ARNG).  When he went to file for a transfer he was denied because he was no longer on active duty.  He would have stayed on active duty to transfer his benefits if he had not been given bad information in the first place.

3.  The applicant provides copies of the following:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* two Post-9/11 GI Bill Transferability information factsheets

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Illinois ARNG (ILARNG) on 1 December 2004, with prior enlisted service in the U.S. Army Reserve and U.S. Air Force.  He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 28 August 2008.  He served in Afghanistan from 1 November 2008 through 22 August 2009.  

3.  He was released from active duty on 10 September 2009 and he was transferred to the ILARNG.  He was credited with completing 1 year and 13 days of active service this period.

4.  A DA Form 3349, dated 2 October 2010, shows he was assigned a permanent profile of 4, 1, 4, 1, 1, 1, for Hypertension and Hip Arthritis. 

5.  In a memorandum, dated 21 December 2010, the ILARNG advised him that the State Surgeon found him unfit for retention in the ARNG due to a Not in Line of Duty related impairment.  The memorandum also advised him of his rights.

6.  He was honorably discharged from the ILARNG on 1 April 2011, by reason of being medically unfit for retention.

7.  An ARNG Retirement Points History Statement, dated 29 July 2011, shows he was credited with completing 11 years, 6 months, and 5 days of creditable service for retired pay.

8.  On 29 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 any member of the Armed Forces on or after 1 August 2009 who, at the time of 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 a 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 of DoD) or statute from committing to 4 additional years and agrees to service 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 service or 20 qualifying years of Reserve service.

9.  The policy further states the Secretaries of the Military Department will provide active duty participants and members of the Reserve Components with qualifying active service individuals pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain record for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

10.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was honorably discharged on 1 April 2011. An ARNG Retirement Points History Statement shows he was credited with completing 11 years, 6 months, and 5 days of creditable service for retired pay.

2.  In order to transfer educational benefits, the law required a member to be serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, has at least 10 years of service on the date of election, and is or becomes retirement eligible (completion of 20 years of active duty or reserve service) during the period from 1 August 2009 through 1 August 2013.

3.  His last day as a member of Selected Reserve was 1 April 2011.  There is no evidence of record and he provided none to show he submitted a request for transfer of educational benefits.

4.  The requirements of this program are set in the law and any changes to this 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.



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)                                         AR20140007203





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ABCMR Record of Proceedings (cont)                                         AR20140007203



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