IN THE CASE OF:  	  

		BOARD DATE:  9 July 2015	  

		DOCKET NUMBER:  AR20140020038 


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 reconsideration of his earlier request for correction of his records to show he applied to transfer his educational benefits to his daughter under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill before he left active duty on 17 August 2010.  Additionally, he states his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect his Legion of Merit or service during the Gulf War.

2.  The applicant states:

* he served our country for 23 years as a Special Forces Soldier and he deployed multiple times to the Gulf War, Africa, Iraq, and Afghanistan
* he was involved in an improvised explosive device (IED) attack during his third tour and he was injured; however, he fought to stay in the Army
* during his fourth tour, he was again hit by an IED and ultimately found himself in the disability system in Hawaii 
* his injuries were too severe and consisted of physical and behavioral health injuries 
* he was retired from active duty with a 100-percent disability rating due to combat injurie and the Department of Veterans Affairs (VA) gave him the same rating 
* when he returned to Fort Bragg, his VA appointment had to be rescheduled and still no one counseled him on the TEB 
* his family has experienced personal, domestic, and professional challenges 
* his daughter was accepted at a college; but their family does not qualify for financial aid due to his tax-free income 

3.  The applicant provides: 

* Congressional correspondence
* Internal Medicine statement
* Letter from the U.S. Army Human Resources Command (HRC) to his Member of Congress
* Letter from the VA 
* Previous Record of Proceedings  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130021745, dated 21 August 2014.

2.  The applicant provides a new argument as well as a medical statement, letters from HRC, and the VA.  This is considered new evidence and warrants consideration by the Board. 

3.  The applicant's records show he enlisted in the Regular Army on 3 February 1987 and he held an infantry military occupational specialty (MOS).  He served through multiple reenlistments in a variety of stateside and overseas assignments, in MOS 18Z (Special Forces Sergeant) and he attained the rank/grade of master sergeant (MSG)/E-8.

4.  His records show that he deployed to Iraq from (20030224 – 20030501 and 20050818 – 20050906) and (Afghanistan 20030910 – 20040313, 20050605 – 20050814, 20060104 – 20060516, and 20060815 – 20070501).  During the period 1 June 2009 to 31 May 2010, he was serving as a senior military science instructor at the University of Guam.  

5.  On 13 May 2010, a physical evaluation board (PEB) convened and determined he was unfit by reason of post-traumatic stress disorder (PTSD), residuals of Traumatic Brain Injury, left arm limitation of motion, spinal fusion, and degenerative arthritis of thoracolumbar spine.  The PEB rated him 
80 percent disabled and recommended his placement on the temporary disability retired list (TDRL). 

6.  He retired on 17 August 2010 and he was placed on the TDRL in his retired rank/pay grade of MSG/E-8 on 18 August 2010.  His DD Form 214 shows he completed 23 years, 6 months, and 15 days of active service.

7.  On 27 July 2011, a TDRL PEB convened and recommended his removal from the TDRL and permanent retirement.

8.  He provides: 

	a.  A medical statement, dated 30 September 2014, in which a doctor indicates the applicant was under his care for bowel problems due to being exposed to nerve agent during the Gulf War.  He considers him totally disabled. 

	b.  A letter, dated 22 October 2014, from HRC to the applicant's Member of Congress, explaining the Post 9/11 GI Bill program and the transferability laws.  HRC stated the applicant did not transfer his educational benefits while he was in an active duty status as required by law.  

	c.  A letter (date unclear) from the VA to the Chief of Legislative Liaison advising that the applicant reported not having been provided appropriate TEB counseling due to his hospitalization. 

9.   On 16 October 2014, the applicant was issued a DD Form 215 (Correction to the DD Form 214) that lists his Legion of Merit and his service during the Gulf War.

10.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

11.  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 the service member must have performed 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.

12.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education 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 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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the TEB was disseminated down to education counselors at the installation level and through many public information sites.  The applicant was eligible to transfer his education benefits under the TEB prior to retirement, but there is no evidence he did so while still on active duty.  The program was implemented in July 2009 and he retired on 17 August 2010.  

2.  The Army, DOD, and VA conducted public campaigns that generated communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify for transfer of benefits to an eligible family member; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.
3.  The applicant continued to serve until he retired in August 2010.  His service and his sincerity are not in question; however, since the applicant had been on active duty for a year after the program was implemented, he had sufficient time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence. 

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 neither an error nor an injustice in his case and, as such, there is no basis for granting the applicant's requested relief.

5.  On 16 October 2014, the applicant was issued a DD Form 215 that lists his Legion of Merit and his service during the Gulf War.  No further correction is required. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20130021745, dated 21 August 2014.



      _______ _   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)                                         AR20140020038



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ABCMR Record of Proceedings (cont)                                         AR20140020038



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