IN THE CASE OF:	   

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140015129 


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, correction of his military records to show he transferred his education benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to being retired from the Idaho Army National Guard (IDARNG).

2.  The applicant states that during the processing of his medical board his physical evaluation board liaison officer (PEBLO) input a TEB showing his spouse was to receive his education benefit vice his daughter.  He argues that while going through his medical processing at Madigan Army Hospital, his PEBLO lied to him by saying that he had submitted a TEB in his daughter's name.

3.  The applicant provides no additional documentation.

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.  With prior Reserve Component service, on 7 April 2003, the applicant enlisted in the IDARNG.  He attained the rank of staff sergeant, pay grade E-6 on 23 October 2008.

3.  In a memorandum, dated 22 June 2011, the Chief, Operations Division, U.S. Army Physical Disability Agency (USAPDA), advised the applicant that the USAPDA had determined he was 40 percent disabled and would be permanently retired due to physical disability.  He was subsequently placed on the retired list effective 27 July 2011.

4.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably separated from the IDARNG due to being placed on the permanent disability retired list effective 27 July 2011.  He had completed a total of 15 years and 25 days of service for pay.

5.  Department of Defense Instruction 1341.13, subject:  Post-9/11 GI Bill, establishes policy for authorizing TEB in accordance with Title 38, U.S. Code, section 3319.  It states:

	a.  The Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. 

	b.  Any Service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request for TEB under this section, may transfer that entitlement provided he or she meets one of these conditions:

		(1)  Has at least 6 years of service in the Military Services (active duty or Selected Reserve) on the date of approval and agrees to serve 4 additional years from the date of election. 

		(2)  Has at least 10 years of service in the Military Services (active duty or Selected Reserve), is precluded by either standard policy or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute. 



6.  A Soldier approved for TEB may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed.  A Soldier:

	a.  may add new dependents, modify entitlement for existing dependents, or revoke entitlement while serving in the armed forces;

	b.  may modify or revoke entitlement among only those dependents who were designated to receive transferred benefits prior to separation from the armed forces; and

	c.  may not add new dependents after separation or retirement from the armed forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he transferred his Montgomery GI Bill (MGIB) benefits under the TEB provision of the Post-9/11 GI Bill to his daughter prior to being retired from the IDARNG. He contends that his PEBLO processed his TEB and lied to him by saying that he had transferred the benefit to his daughter.

2.  The evidence shows that the applicant was retired due to a physical disability.

3.  The applicant argues that his PEBLO, acting on his behalf, processed his TEB and then lied to him about who received the benefit.  However, he has not provided any documentary evidence to support his allegation.  Furthermore, he should have had been more diligent concerning the processing of this action.  There is no available evidence showing that the applicant was precluded by any physical or mental disability from processing the TEB himself.

4.  The requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is no proof of an error or injustice in his case and, as such, there is no basis for granting the applicant's requested relief.

5.  In view of the above, the applicant's request should be denied.



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)                                         AR20140015129





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ABCMR Record of Proceedings (cont)                                         AR20140015129



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