BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140012531 


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 the records of her deceased husband, a former service member (FSM), be corrected to show he transferred his Post 9-11 GI Bill benefits to his dependents. 

2.  The applicant states:

	a.  According to the Finance and Incentives Branch, Army Continuing Education Division, U.S. Army Human Resources Command (HRC), the FSM did not successfully transfer his Post 9/11 GI Bill benefits.  However, he had requested transfer on 7 May 2013, a transfer request was received, allocating 23 months to Cody and 1 month to his spouse on 30 May 2013.  This transfer request was disapproved due to insufficient retainability.  The FSM was pending a medical evaluation board (MEB) at the time.  The guidance he was given at the time was that if the medical board determined him to be medically retired, he may reapply once separation orders are cut but before final day in service.   

	b.  An email was sent to the FSM’s email address explaining this.  The separation orders were cut on 1 November 2013 with a final day in service (retirement date) of 31 December 2013.  On 6 January 2014, an email was received from the Career Counselor at the Madigan Army Medical Center Warrior Transition Battalion, with attached DD Form 214 (Certificate of Release or Discharge from Active Duty) and separation orders for the FSM.  

	c.  The following response was sent from HRC on 7 January 2014.  "Thank you for providing a copy of [Applicant’s] medical separation orders.  Unfortunately, the Soldier did not submit a new request after his separation orders were cut, but before his final day in the service; therefore, he is no longer eligible to transfer Post 9/11 GI Bill benefits.  [Applicant] may file an appeal with the Army Review Boards Agency.  He'll need to explain the course of actions that occurred and explain why he did not submit a new request prior to his separation date.”

	d.  His family's wish is to follow-up with the request for consideration through this Board due to the FSM’s untimely illness (leaving him physically unable to resubmit) and death leaving him unable to resubmit his transfer of Post 9/11 GI Bill to his children, Cody and Raven.  The FSM was medically retired on 21 December 2013 and died on 20 January 2014.

3.  The applicant provides:

* Duty Appointment for Casualty Assistance Officer
* DD Form 214
* Casualty Status Report
* Retirement orders
* Department of Veterans Affairs (VA) rating
* Post 9-11 GI Bill VA denial letter
* Certificate of marriage
* Certificate of death

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the FSM enlisted in the Regular Army on 13 January 2003 and he held military occupational specialty 15S (OH-58D Helicopter Repairer).  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of sergeant (SGT)/E-5. 

2.  On 15 September 2013, a physical evaluation board (PEB) convened and found him physically unfit.  The PEB rated his disabilities and recommended his permanent retirement with a 100-percent rating.  He concurred. 

3.  On 1 November 2013, Directorate of Human Resources, Joint Base Lewis-McChord, WA published Orders 305-009 retiring him from active duty by reason of disability effective 21 December 2013. 

4.  He retired on 21 December 2013 and he was placed on the Retired List in his retired rank/grade of SGT/E-5 on 22 December 2013.  He completed 14 years, 2 months, and 26 days of active service. 

5.  On 20 January 2014, the FSM died.  His death certificate identifies him as married to the applicant. 

6.  On 6 March 2014, the VA rendered a rating decision on the FSM’s service-connection as it is related to his death. 

7.  On 25 March 2014, the VA sent his son, Cody, a letter of disapproval of his claim for educational benefits because the FSM was not approved by DOD to transfer up to 26 months of entitlements to his children/spouse. 

8.  An HRC official confirmed the confirmed the applicant’s contention and stated: 

	a.  On 30 May 2013, his TEB request was disapproved due to insufficient retainability.  The FSM was pending an MEB at the time.  If the medical board determines him to be medically retired, he may reapply once separation orders are cut, but before final day in service.

	b.  On 7 January 2014, medical separation orders were received. Unfortunately, he did not submit a new request after his separation orders were cut, but before his final day in the service; therefore, he is no longer eligible to transfer Post 9/11 GI Bill benefits.  He may appeal to the ABCMR. 

	c.  On 5 May 2014, in response to the Casualty Assistance Officer, HRC official stated the FSM did not successfully transfer his Post 9/11 GI Bill benefits. However, he had requested transfer on 7 May 2013, a transfer request was received, allocating 23 months to Cody and 1 month to his spouse.  On 30 May 2013, this transfer request was disapproved due to insufficient retainability.  The FSM was pending an MEB at the time and if the medical board determines him to be medically retired he may reapply once separation orders are cut, but before final day in service.  An email was sent to the FSM’s email address explaining this.  His separation orders were cut on 1 November 2013, with a final day in service (retirement date) of 21 December 2013.  On 6 January 2014, an email was received from the Career Counselor at the Madigan Army Medical Center Warrior Transition Battalion with attached DD Form 214 and separation orders for the FSM.  Unfortunately, the FSM did not submit a new request after his separation orders were cut, but before his final day in the service; therefore, he is no longer eligible to transfer Post 9/11 GI Bill benefits.  

9.  On 22 June 2009, 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 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 meets various criteria.  One of the requirements is that an individual must have at least 6 years in the armed forces on the date of approval and agree to serve 4 additional years in the armed forces from the date of selection. 

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM served on active duty from 13 January 2003 to 21 December 2013. It appears when he submitted his TEB request in May 2013 his TEB request was disapproved due to insufficient retainability.  He was informed if the medical board determined him to be medically retired, he may reapply once separation orders are cut, but before final day in service.  

2.  The FSM’s separation orders were published on 1 November 2013, with a retirement date of 21 December 2013.  Unfortunately, the FSM did not submit a new request after his retirement orders were cut, but before his final day in the service; therefore, he is no longer eligible to transfer Post 9/11 GI Bill benefits.  

3.  Although there is no statutory or regulatory error in his records, as a matter of equity only, the FSM's records should be corrected to show he submitted a transfer of his Post-9/11 education benefits, prior to his medical retirement, his requested was accepted, received, and processed, and the service remaining requirements were waived in light of his medical condition. 

BOARD VOTE:

___X_____  __X______  _X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 his Post-9/11 GI Bill benefits to his family member(s) prior to 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)                                         AR20140012531





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ABCMR Record of Proceedings (cont)                                         AR20140012531



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