IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017431 


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 under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states, in effect, he:

* served in Iraq and Kuwait from 27 December 2002 to 24 November 2004
* was placed on active duty medical extension (ADME) after being injured
* had five operations on his right shoulder and a laminectomy on his back involving the removal of two discs with instrumented fusion
* was medically retired and placed on the Temporary Disability Retired List (TDRL) effective 16 January 2008
* was removed from the TDRL on 29 October 2009 and permanently retired
* spoke with a representative about his benefits on 30 October 2009, but did not receive information about preserving/transferring his GI Bill benefits
* learned from the Department of Veterans Affairs (VA) that he was entitled to about 31 months of college benefits, but transfer of benefits to his dependents had to have occurred from August 2009 to December 2009

3.  The applicant provides copies of his physical evaluation board (PEB) proceedings, ADME, TDRL, and permanent retirement orders.


CONSIDERATION OF EVIDENCE:

1.  After having had prior commissioned service in the U.S. Coast Guard Reserve and the Army National Guard, the applicant was transferred to the U.S. Army Reserve on 2 July 1995.  He was promoted to major (MAJ)/pay grade O-4, in the Military Police Corps, on 20 August 2000.

2.  The applicant was ordered to active duty in support of Operation Enduring Freedom on 2 January 2003 for a period of 365 days.  

3.  On 22 October 2003, the applicant was notified that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

4.  On 3 December 2003, the period of his active duty was extended to a period of 454 days.

5.  In support of his request the applicant provides the following documents.

   a.  DA Form 199 (PEB Proceedings) that show, on 16 November 2007, a PEB found the applicant physically unfit for continued military service.  The PEB recommended the applicant be placed on the TDRL with a disability rating of 
30 percent (%).  

   b.  U.S. Army Physical Disability Agency (USAPDA), Washington, DC, Orders D346-06, dated 11 December 2007, that released the applicant because of physical disability and placed him on the TDRL effective 16 January 2008.

   c.  U.S. Army Human Resources Command (HRC), Alexandria, VA, Orders A-12-724480, dated 31 December 2007, that retained the applicant on active duty for a period of 5 months and 27 days (with a reporting date of 20 December 2007) to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment.

   d.  HRC, Alexandria, VA, Orders A-12-724480R, dated 2 January 2008, that revoked HRC, Alexandria, VA, Orders A-12-724480, dated 31 December 2007.

   e.  DA Form 199 that shows, on 21 October 2009, a PEB found the applicant physically unfit.  The PEB recommended the applicant be permanently retired with a disability rating of 40%.  He concurred with the PEB proceedings.


   f.  USAPDA, Washington, DC, Orders D302-76, dated 29 October 2009, that removed the applicant from the TDRL on 29 October 2009 and permanently retired him in the rank of MAJ (O-4) with a 40% disability rating.

6.  A review of the applicant's transaction history with HRC shows he contacted HRC, on 6 February 2012, concerning qualifying Title 10 mobilization service as related to the Post-9/11 GI Bill.  (There are no entries prior to this date regarding a request related to TEB.)

7.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  This public law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  The law identified the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.

	b.  The Post-9/11 GI Bill TEB Program was implemented on 1 August 2009.

	c.  Eligibility to transfer unused benefits is limited to those members of the U.S. Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his educational benefits should be transferred to his dependents under the TEB provision of the Post-9/11 GI Bill, as an exception to policy, because he was never informed of the requirement to transfer the benefit before he retired from military service.

2.  The law provides that a service member must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible to transfer unused benefits to eligible family members.

3.  Records show the applicant was transferred to the TDRL on 16 January 2008.
Thus, as of that date, he was no longer a member of the Selected Reserve.
4.  There is no evidence of record that shows the applicant was serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Therefore, he is not eligible for the Post-9/11 GI Bill transferability option.

5.  Considering all the evidence and information presented by the applicant, together with the evidence of record, there is no basis for granting the applicant's 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)                                         AR20140017431



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ABCMR Record of Proceedings (cont)                                         AR20140017431



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