IN THE CASE OF:  	  

		BOARD DATE:  7 May 2015	  

		DOCKET NUMBER:  AR20140016310 


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 children 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 and placed on the Temporary Disability Retired List (TDRL) on 7 April 2014
* prior to his retirement, he attended a series of briefings and was told by education department personnel his dependents were allowed and eligible to use his Post 9/11 GI Bill education benefits
* he asked the education department personnel if he needed to do anything while still on active duty and was told no; it would be automatic
* they also told him to wait to assign portions of his GI Bill education benefits until after his children had applied and been accepted at either a technical school or college
* later, when he attempted to make a transfer, he learned his children were not eligible
* he feels it is unjust that he was not able to use this benefit because of being misled by personnel whose duty it was to properly inform him of the requirements
* he respectfully requests favorable consideration so that his oldest son can attend college using benefits he earned while faithfully and honorably serving his nation and the U.S. Army

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 20 August 2008.  He held an infantry and a medical military occupational specialty during his military service.  He served in various units and deployed to Iraq from 17 October 2009 to 8 October 2010.  The highest rank/grade held was specialist/E-4.

2.  On 17 December 2013, a physical evaluation board (PEB) found the applicant unfit for continued military service.  The PEB recommended the applicant be placed on the TDRL with a disability rating of 90 percent.  On 2 January 2014, he concurred with the PEB's recommendation and waived his right to a formal hearing as well as a reconsideration of his rating by the Department of Veterans Affairs.  On 7 April 2014, he was honorably discharged and placed on the TDRL effective 8 April 2014.

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 7 months, and 18 days of net active service this period.  This form also shows 9 months and 1 day of prior active service and 7 years, 2 months, and 29 days of prior inactive service.  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).  

4.  A review of the applicant's contact transaction history with the U.S. Army Human Resources Command (HRC) shows contact with HRC regarding issues such as the status of his Traumatic Service-Members Group Life Insurance and Combat-Related Special Compensation claims.  There are no entries regarding any requests related to TEB.

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 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.
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 (emphasis added).

8.  Soldiers with 10 years or more of qualifying service who are in the IDES process are not permitted by U.S. Army retention policy to extend or reenlist for the additional four year service obligation.  No exception to policy (ETP) is required to be approved, however, for Soldiers in this category. They are to submit a request for transfer of benefits once the medical separation order has been provided but before the effective date shown on the medical separation order.  Requests for transfer are submitted to HRC along with a copy of the medical separation order.  Upon approval, HRC adjusts the TEB service obligation to meet the date of medical separation.  

9.  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 contends he was misinformed by education department personnel when he was led to believe he should wait to transfer his Post 9/11 GI Bill education benefits to his children.  Based upon this misinformation, he did not transfer education benefits while still on active duty.

2.  The applicant provides no documentary evidence to support his contention.  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.  When no evidence is available, the Board must presume administrative regularity.

3.  Based upon the foregoing, there is insufficient evidence to support granting 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)                                         AR20140016310





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ABCMR Record of Proceedings (cont)                                         AR20140016310



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