IN THE CASE OF:	   

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140013423 


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 medically retired in 2010 and was never made aware of the availability of TEB as he went through the Integrated Physical Disability Evaluation System (IDES) process.  He feels he has earned the ability to transfer his education benefits based upon his service in Iraq.  He was wounded in the line of duty, received a Purple Heart, and therefore has paid a higher price than most Soldiers.

3.  The applicant provides no additional documentary evidence.

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.  The applicant enlisted in the Regular Army on 23 July 2003.  After completing initial training, he was awarded military occupational specialty 19D (Cavalry Scout).  He served in various assignments, including three deployments to Iraq for a total period of 1 year, 4 months, and 5 days.  He attained the rank/grade of sergeant/E-5.

3.  On 22 July 2010, a physical evaluation board (PEB) found the applicant to be physically unfit for continued military service.  He was placed on the Temporary Disability Retired List (TDRL) effective 25 October 2010.  On 6 June 2014, a PEB determined the applicant should be placed on the Permanent Disability Retired List.  He was removed from the TDRL and permanently retired effective 4 July 2014.

4.  His DD Form 214 shows total creditable active service for 7 years, 3 months, and 2 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.

5.  His record contains a DD Form 2648 (Pre-Separation Counseling Checklist for Active Component Service Members), signed by the applicant on 12 August 2010.  In Section IV (The following services and benefits are available to all service members unless otherwise specified) it shows he chose not to receive information on education benefits, but did request a Veterans Benefits briefing and information on programs for disabled Veterans.

6.  A review of the applicant's contact transaction history with the U.S. Army Human Resources Command (HRC) shows his only contact with HRC was in December 2010 regarding the status of his Combat-Related Special Compensation claim.  There are no entries regarding any requests related to TEB.

7.  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 duties 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.

8.  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.

9.  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 (emphasis added).

10.  Soldiers with at least 6 years, but less than 10 years of service who are in the 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 (ETP) is required to be approved to enable the Soldier to extend or reenlist.  

	a.  To initiate an ETP request, a Soldier must contact their servicing Career Counselor to request the initiation of an ETP request to extend or reenlist in order to meet the additional service obligation.  The ETP request must be approved and the Soldier must extend or reenlist for the additional 4-year service obligation prior to the PEB finding that the Soldier is physically unfit on DA Form 199, 
block 9 (emphasis added). 
	b.  The career counselor must process the ETP request to the Enlisted Professional Development Branch (policy proponent for retention and the Post 9/11 GI Bill) of the Army G-1, Director of Military Personnel Management, Enlisted Career Systems Division.  Upon ETP approval, the career counselor will assist the Soldier in extending or reenlisting, and submitting the TEB request.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 2648 shows he was afforded the opportunity to receive information regarding education benefits and, as part of his pre-separation processing, he would have received a briefing on all available Veterans Benefits prior to his discharge.  The Board proceeds from a presumption of administrative regularity and, barring evidence to the contrary, it appears he was properly informed of TEB as part of his pre-separation process.  

2.  Additionally, the law requires Soldiers with more than 6 years but less than 10 years to serve an additional 4 years as part of the eligibility criteria for TEB.  Soldiers in the IDES process who are therefore precluded from extending or reenlisting must request an ETP to extend or reenlist so the requirement of the 
4-year service obligation can be met.  The ETP request must have been approved and the Soldier must have extended or reenlisted prior to the PEB finding that the Soldier is physically unfit on DA Form 199, block 9 (emphasis added).

3.  He has provided no evidence showing he exercised due diligence and that he submitted an ETP in sufficient time to qualify for TEB.

4.  The applicant's sacrifice in the service of his country and his sincerity are not in question.  However, 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)                                         AR20140013423





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ABCMR Record of Proceedings (cont)                                         AR20140013423



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