IN THE CASE OF:  	  

		BOARD DATE:  8 January 2015	  

		DOCKET NUMBER:  AR20140009465 


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 to his dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states transferring him to the Retired Reserve on 20 April 2006 and declaring him medically disqualified to serve prevented him from serving the required time to transfer his educational benefits.  At the time of his retirement he was enrolled in the Command and General Staff College correspondence course and he would have met the requirements for promotion to lieutenant colonel which would have required him to serve additional years beyond 1 August 2009.  His not serving beyond 1 August 2009 was not due to his own fault.

3.  The applicant provides:

* his orders for transfer to the Retired Reserve
* a letter, dated 26 March 2013, from the Department of Veterans Affairs (VA)
* his letter, dated 27 April 2014, to the VA
* his email, dated 5 May 2014, to U.S. Army Human Resources Command (HRC)
* a letter, dated 13 May 2014, from the VA


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.  He had previously served in the U.S. Marine Corps.  On 5 December 1987, he was appointed as a Reserve commissioned officer in the rank of second lieutenant.

3.  On 7 September 1989, he entered active duty as a Regular Army (RA) officer.  He served in various positions and he was promoted to major.  On 23 February 2001, he was honorably discharged from the RA by reason of resignation.

4.  On 11 May 2001, he was appointed as a U.S. Army Reserve commissioned officer.  He was assigned to a troop program unit (TPU).

5.  On 17 March 2006, the Command Surgeon, Headquarters, 81st Regional Readiness Command, notified the applicant by memorandum that a review of the medical records he submitted indicated he did not meet retention requirements in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-42c.  Soldiers who are medically disqualified and pending separation for non-duty related (NDR) impairments may request an NDR Physical Evaluation Board (PEB) solely for the purpose of fitness determination.  Soldiers are not eligible for disability benefits for NDR impairments.  He was given four options as follows:

* request an honorable discharge
* request an informal PEB to review his medical records for a final determination of medical fitness for retention
* request reassignment to the Retired Reserve, if completed 20 qualifying years, with eligibility to receive retired pay at age 60
* request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 years, if completed at least 15 but less than 20 qualifying years
6.  He elected to be reassigned to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 in accordance with Title 10, U.S. Code, section 12731(b).  He indicated that he had at least 15 but less than 20 qualifying years of service for retired pay with the last 6 years having been creditable Reserve service (good years).

7.  On 20 April 2006, he was transferred to the Retired Reserve by reason of medical disqualification.

8.  On 7 May 2008, officials at HRC-St Louis advised the applicant that his records indicated he had completed 19 years of creditable active service and that the remaining 6 years of Selected Reserve service must be good years to qualify for non-regular retirement.  A "good" year is defined as earning a minimum of 50 retirement points during the Soldier's year of service.  The applicant did not meet this requirement during the last 2 years.  Therefore, he did not qualify for the issuance of a 20-year letter.

9.  However, to accommodate him, officials offered him the option to have his retirement orders revoked and to transfer him to the Individual Ready Reserve (IRR) where he would be assigned to a unit to complete the 2 years needed to obtain a 20-year letter.  He was offered a second option of having his retirement orders revoked and transferring him to a TPU where he could complete 2 years of service.  He declined both options.

10.  Public Law 110-252, dated 30 June 2008, authorized the Post-9/11 GI Bill which became effective 1 August 2009.  Section 3319 of this law states that an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.

11.  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 for 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.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.


DISCUSSION AND CONCLUSIONS:

1.  On 17 March 2006, over 3 years before implementation of the TEB provision of the Post-9/11 GI Bill, he elected to transfer to the Retired Reserve instead of an NDR PEB solely for the purpose of a fitness determination.  His being removed from an active status had nothing to do with his being enrolled in the Command and General Staff College or having to do with his possibly being eligible for promotion to lieutenant colonel.  It had to do with his not being medically qualified to continue to serve. 

2.  On 7 May 2008, he declined having his retirement orders revoked and be transferred to the IRR or to a TPU to complete the 2 years he needed to qualify for a 20-year letter.

3.  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.  The applicant was neither on active duty nor in the Selected Reserve at the time 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 to his dependent.

4.  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)                                         AR20140009465



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ABCMR Record of Proceedings (cont)                                         AR20140009465



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