BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140014404 


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 transfer of her educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to her children.

2.  The applicant states her transfer of education benefits request was rejected due to her "failure to serve 10 years."  Public Law (PL) 110-252, sections 3311 and 3319 and the Department of Defense (DoD) Instruction Number 1341.31 state that service-connected disability is an exception to the 10-year service requirement to transfer education benefits to dependent children.

3.  The applicant provides copies of the following:

* Orders Number 004-0114
* milConnect website TEB information
* PL 110-252, section 3311 and 3319
* DoD Instruction Number 1341.31

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was appointed in the Regular Army (RA), Army Nurse Corps, as a first lieutenant on 7 January 2010.  She held the area of concentration 66E (operating room nurse).  She was promoted to captain on 22 June 2010.

3.  Orders Number 004-0114, issued by Headquarters, U.S. Army North (5th Army), Fort Sam Houston, TX on 4 January 2013, released her from active duty because of physical disability incurred while entitled to basic pay and placed her on the Temporary Disability Retired List (TDRL), rated at 70 percent, effective 28 January 2013.  

4.  She provided a copy of her milConnect website TEB information which shows her transfer request of the Post-9/11 GI Bill benefits was successfully transmitted to her children on 9 January 2013.

5.  She was retired on 27 January 2013 under the provisions Army Regulation 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of temporary disability.  She was credited with completing 3 years and 21 days of active service.

6.  On 12 May 2015, a staff member of the U.S. Army Human Resources Command, Army Continuing Education Division, verified the applicant requested a TEB on 9 January 2013.  On 10 January 2013, the TEB was rejected due to her not having at least 6 years of service.  The applicant was transferred to the TDRL on 28 January 2013.   On 9 September 2014, the applicant contacted HRC and was advised by a staff member of the TEB eligibility and quoted PL 110-252, section 3319(b)(1) and (2) in that to be approved for TEB, the member must have served at least 6 years whereas she had only served 3 years so she was ineligible to transfer education benefits to dependents.  The applicant was advised that she was eligible for Post 9/11 GI Bill under PL110-252 section 3311(b)(2)(A) and (B) (30 days with a service-connected disability from active duty).  The "30-day service-connected disability" didn't overrule the "6-year requirement."   

7.  On 29 June 2009, the 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 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.

10.  She also provided copies of the following:

   a.  PL 110-252, section 3311 (Education assistance for service in the Armed Forces commencing on or after 11 September 2001: entitlement), which states in:

		(1)  Subparagraph (a)(1)(A) - An individual who commencing on or after 11 September 2001, serves an aggregate of at least 36 months (3 years) on active duty in the Armed Forces; and continues on active duty is entitled to education assistance.

		(2)  Subparagraphs (c)(4) (Covered Discharges and Releases) and (c)(2) - a discharge or release from active duty of an individual described in this subsection is a covered discharge or release for an individual released after service on active duty with honorable characterization and placement on the TDRL is entitled to educational assistance.

   b.  PL 110-252, section 3319 (Authority to transfer unused education benefits to family members), which states in subparagraph (i)(2)(B)(ii) - an exception to the failure to complete the service agreement shall not apply in the case of an individual transferring entitlement under this section who fails to complete the service agreed to by the individual for a reason referred to in section 3311(c)(4) (placed on the TDRL).

   c.  DoD Instruction 1341.13 (Post-9/11 GI Bill), dated 31 May 2013, which states it established policy for authorizing the transferability of education benefits with section 3319 of Post-9/11 GI Bill.  The instruction states in:

		(1)  Subparagraphs 3.d(2)(b)(1) and (2) - a child may start to use the benefit after the individual making the transfer has completed at least 10 years of service in the military services or is separated for one of the reasons referred to in subparagraph 3.g.(2).

		(2)  Subparagraphs 3.g.(2) and 3.g.(4) – the failure to complete service agreement shall not apply to an individual transferring entitlements under this section who fails to complete service agreed to due to the transferor being discharged for a disability.  

11.  PL 110-252, section 3319 (Authority to transfer unused education benefits) (b)(1) states (b) states an individual referred to in subsection (a) is any member of the Armed Forces who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, has completed at least 6 years of service in the armed forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are acknowledged.  The evidence shows she was appointed in the RA on 7 January 2010.  She retired by reason of physical disability and was placed on the TDRL on 28 January 2013.  

2.  In accordance with PL 110-252, section 3319(b)(1) her request to TEB to her children was rejected because she had not completed the required 6 years of service at the time.  She was subsequently advised that she was entitled to her educational benefits, but not her dependents.  She had not completed 6 years of service at the time; therefore, she is not eligible to transfer her educational benefits to her dependents.

3.  The law is clear; at the time of her placement on the TDRL she must have completed 6 years of service in the Armed Forces to be eligible to transfer educational benefits.  Although there are exceptions that allow for TEB for Soldiers who are separated or retired for medical reasons, these exceptions are not applicable to Soldiers who have less than 6 years of service.  

4.  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 her case and, as such, 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)                                         AR20140014404





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ABCMR Record of Proceedings (cont)                                         AR20140014404



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