BOARD DATE:	3 March 2015  

		DOCKET NUMBER:  AR20140012144 


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

2.  The applicant states, in effect, he was unable to meet the requirement for having 10 years of service because he was medically retired in 2014.  He was informed his spouse would receive his unused education benefits.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders placing him on the Temporary Disability Retired List (TDRL)
* General Power of Attorney
* Special Power of Attorney
* Department of Veterans Affairs (VA) Form 28-1900
* VA rating decision
* letter from the VA explaining benefits

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 May 2006.  After completing initial training, he was awarded military occupational specialty 88M (Motor Transport Operator).  He served in various assignments and deployed twice to Afghanistan.  He attained the rank/grade of sergeant/E-5.
2.  On 17 January 2014, a physical evaluation board (PEB) found the applicant to be physically unfit for continued military service.  He was medically retired on 11 March 2014 and placed on the TDRL effective 12 March 2014.

3.  His DD Form 214 shows total creditable active service of 7 years, 9 months, and 19 days.  The separation authority is Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.  The narrative reason for separation is disability, temporary (enhanced).  The character of service is honorable.

4.  A review of the applicant's transaction history with the U.S. Army Human Resources Command (HRC) shows he contacted HRC in February 2014 regarding TEB.  The notes indicate he was informed a request for TEB could not be approved because of he lacked sufficient remaining time in service.

5.  Public Law 110-252 establishes the legal requirements on the transferability of unused Post 9/11 GI Bill benefits; however, this law also limits the transfer to those members who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  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 duty 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.

6.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states eligible individuals include 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.

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

8.  Soldiers with at least six years, but less than 10 years of service who are in the Integrated Disability Evaluation System (IDES) process are not permitted by the U.S. Army Retention policy to extend or reenlist for the additional four year service obligation.  As such, an exception to policy is required to be approved to enable the Soldier to extend or reenlist.  

DISCUSSION AND CONCLUSIONS:

1.  Soldiers with at least six years but less than 10 years of service who are in the IDES process must request an exception to policy to extend or reenlist so the requirement of the four year service obligation for the TEB can be met.  

2.  The applicant has provided no evidence to show he submitted an exception to policy to reenlist in sufficient time to qualify for TEB prior to his placement on the TDRL.

3.  Based upon the foregoing, the request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X______  _X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant
and all Americans should be justifiably proud of his service in arms.




      _______ _  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)                                         AR20140012144



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ABCMR Record of Proceedings (cont)                                         AR20140012144



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