IN THE CASE OF 

		BOARD DATE:	    9 July 2014

		DOCKET NUMBER:  AR20140010314 


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 her Post-9/11 GI Bill education benefits to her son.

2.  The applicant states:

   a.  A Soldier cleared and out-processed her due to her medical condition and status at her retirement.  She was not afforded the opportunity to transfer her college benefits to her son during out-processing which she is entitled to.  She learned in April 2014 when her son applied for college that her GI Bill benefits were not transferred.

   b.  His ex-husband (who served 20 years in the Army, honorably) was unable to meet the criteria to transfer the GI Bill benefits by one month to their son, so they knew it was up to her to transfer the benefits.  She was going to transfer them because she met the criteria and was entitled to do so given the opportunity.

   c.  During her nearly 22 years in the Army she served in numerous deployments to include Somalia and Iraq.  The one year in Iraq took a toll on her and she was unable to function and continue in this great Army.  She served this country proudly, honorably, and found and kept it safe for nearly a quarter of a century as did her son's father.  

   d.  It is one thing if she forgot or just did not decide to transfer the GI Bill benefits during clearing and out-processing, but that is not the case.  She was never afforded the opportunity to clear or out-process because of her medical status; therefore, she was never allowed to transfer the benefits to her son.  A review of her DD Form 214 (Certificate of Release or Discharge from Active Duty) will shows she e-signed her DD Form 214 for the same exact reason.  

   e.  She did not foresee becoming mentally ill and having someone else out-process her and not being given the opportunity to transfer the benefits.  Between her son's father and her, they spent nearly half a century serving in the Army and all they are requesting is to approve what she is entitled to which is to transfer the benefits to her son.

3.  The applicant provides copies of a Memorandum for Record (MFR) and her DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 17 January 1989.  She was discharged from the DEP and enlisted in the Regular Army on 15 March 1989.  She served as a military police.  She served continuously on active duty through several reenlistments in various assignments, stateside and in foreign countries.  

2.  In March 2010, an informal Physical Evaluation Board (PEB) convened and determined her condition of post-traumatic stress disorder (PTSD) was unfitting.  She stated that she did not concur with the findings and recommendations of the PEB and requested a formal hearing.

3.  In a memorandum, dated 24 March 2010, the applicant stated that she did not agree with the PEB's findings in that medical conditions were listed under the diagnosis of PTSD.  The attorney for the Department of Veterans Affairs (VA) felt that those conditions should have been listed and rated separately.  The issue of traumatic brain injury (TBI) had not been addressed even though she had completed a TBI evaluation and work-up while she was an inpatient at the Minneapolis VA.  Nothing was mentioned about that in her PEB or in the PEB findings.

4.  On 27 April 2010, a formal PEB convened and determined her medical conditions of PSTD with elements of major depression disorder with psychotic features and conversion disorder occurring in the aftermath of several deployments, the most recent to Iraq in 2006, as unfitting for her primary military
occupational specialty.  She was rated at 100 percent for PTSD and 30 percent for migraine, not blast related.  The PEB stated that a permanent evaluation was not yet possible and therefore recommended her placement on the temporary disability retired list (TDRL).

5.  In a memorandum, dated 27 April 2010, the Chief, Operations Division, U.S. Army Physical Disability Agency (USAPDA), advised the applicant that the USAPDA had noted her disagreement with the findings of the PEB and had reviewed her entire case.  The agency's position was that her case was properly adjudicated by the PEB.  The findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.  Her PEB proceedings had been corrected and that administrative correction did not change her disposition; however, her rating had been increased to 100 percent. 

6.  She was honorably retired, in pay grade E-7, on 12 July 2010, and placed on the TDRL.  She was credited with completing 21 years, 3 months, and 28 days of net active service.  Her DD Form 214 shows she served in:

* Somalia from 11 January through 9 June 1993
* Cuba from 16 February through 13 August 1995
* Iraq from 4 January through 29 December 2006

7.  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 stats 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 stature; 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.
   
   
8.  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.

9.  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 applicant was fully eligible to transfer her education benefits to her son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retirement, but it appears she did not do so.  The program was implemented in July 2009, nearly one year prior to her PEB, and she retired on 12 July 2010.  Prior to retirement, there is no evidence and she did not provide any showing she properly applied for the transfer of benefits while on active duty and/or she was given false information by a reliable source about the rules of transferring education benefits.

2.  The DoD, Department of Veterans Affairs, and the Army conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to quality to transfer benefits to an eligible dependent; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The applicant's service and her sincerity are not in question.  She continued to serve on active duty for over one year after the TEB provisions of the Post-9/11 GI Bill was implemented.  Therefore, she had plenty of time to submit her application and/or to verity that her application was submitted in the proper manner.  Notwithstanding her processing through medical channels, there is no evidence she exercised due diligence.  While there may have been some confusion during the early stages after the implementation, she retired well after the program was implemented.

4.  There is neither an error nor an injustice in her transfer of benefits processing. Therefore, she 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)                                         AR20140010314





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ABCMR Record of Proceedings (cont)                                         AR20140010314



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