IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150002422 


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

2.  The applicant states she was medically retired suddenly due to a 90 percent (%) disability incurred after she was seriously injured during combat in Iraq.  She reported to Fort Knox, KY, where her outprocessing was done in 1 day.  She received her DD Form 214 (Certificate of Release or Discharge from Active Duty) and her new identification (ID) card and filled out some paperwork at Finance.  She was never informed about the Post-9/11 GI Bill or that it could be transferred.  She has a son that was in high school at the time.  She certainly would have taken advantage of transferring this benefit if she had been informed.  She is eligible for the benefit, she will not be able to use it due to serious brain injury.  Her son can use it; she is asking for a benefit that she is entitled to.

3.  The applicant provides her DD Form 214 and a birth certificate. 

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.  The applicant’s records show, having had prior enlisted service in the Regular Army, she was appointed as a Reserve second lieutenant in the U.S. Army Reserve (USAR) on 31 May 1984.  She served continuously in the USAR and on 15 October 2004, she was promoted to the rank of lieutenant colonel (LTC).

3.  She was ordered to active duty as a member of the USAR in support of Operation Iraqi Freedom and she entered active duty on 11 August 2004.  She served in Iraq from 23 August 2004 to 18 April 2005.  On 14 June 2005, she was extended on active duty and assigned to the Medical Retention Company, Fort Bragg, NC, in the Reserve Component (RC) Medical Holdover Medical Retention Processing Program (MRPP) for completion of medical care and treatment.

4.  On 31 May 2007, she was assigned to the Medical Retention Company, Fort McCoy, WI, and attached to Rock Island Arsenal, Rock Island, IL, in the MRPP for completion of medical care and treatment.  

5.  On 18 December 2008, she completed a DD Form 93 (Record of Emergency Data), wherein she indicated she was divorced and had one child, a son named Samuel R. D____, born on 23 August 1993.

6.  Her record contains a DD Form 2648 (Preseparation Counseling Checklist - for Active Component Service Members), dated 5 February 2009, wherein it shows she was counseled on that date for her involuntary separation with an anticipated date of 5 March 2009.  This form shows her duty station as “Fort Knox, IN (sic).”  The form was printed in June 2006 and the Education/ Training block of this form does not contain a reference to the Post-9/11 GI Bill. 

7.  It also appears a medical evaluation board was conducted, found she had several unfitting medical conditions, and recommended she go before a physical evaluation board (PEB). 

8.  On 29 April 2009, an informal PEB was conducted and confirmed her unfitting conditions, in part, of residuals of traumatic brain injury and post-traumatic stress disorder.  The PEB found her medical impairments prevented her from reasonably performing the duties required by her grade and job specialty, found she was physically unfit and recommended she be placed on the Permanent Disability Retirement List (PDRL) and assigned a 90% disability rating.  
9.  On 11 May 2009, the applicant concurred with the PEB findings and recommendation and waived her right to a formal hearing.  On 27 May 2009, the Secretary of the Army approved the PEB proceedings.  

10.  She was honorably retired from active duty and the USAR on 25 August 2009 in the rank of LTC by reason of permanent disability and she was transferred to the PDRL on 26 August 2009.

11.  The DD Form 214 she was issued for this period of service shows she was separated at Fort Knox, KY.  She completed 5 years and 15 days of net active duty service during this period of service, had 4 years, 8 months, and 17 days of prior active service, and she had 19 years and 5 months of prior inactive service.

12.  Her Chronological Statement of Retirement Points, dated 17 September 2014 shows as of 26 August 2009, she had 20 years, 6 months, and 25 days of qualifying service for Reserve retirement.  

13.  It appears she had one eligible family member, her son, enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) system prior to her retirement date of 26 August 2009.

14.  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 an eligible member is 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 the maximum amount of time allowed by such policy or statute; 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 duty or 20 qualifying years of Reserve service.

15.  A member of the Armed Forces is eligible to transfer education benefits to family members if he or she:

	a.  has eligible family members enrolled in DEERS.  Children lose eligible family member status upon turning 21 years of age or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; and

	b.  initially requests the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA).  Once the benefits are transferred, children may use the benefits up to age 26.

16.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the RC with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer her educational benefits to her son under the TEB provision of the Post-9/11 GI Bill prior to her retirement for permanent disability and her subsequent placement on the PDRL on 26 August 2009, but there is no evidence she did so.  The program was implemented on 1 August 2009 and she was retired from active duty and the USAR on 25 August 2009.

2.  DOD, the Army, and the VA conducted a public campaign plan 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 to transfer benefits to an eligible dependent.

3.  Nevertheless, during the initial implementation of this new program many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefits.  This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  There is no evidence that shows the applicant was counseled on her eligibility to transfer her educational benefits to her family members at the time she was released from active duty and the USAR and placed on the PDRL on 26 August 2009.  Her separation counseling conducted on 5 February 2009 was completed prior to 22 June 2009, the date DOD established the criteria for eligibility and transfer of the Post 9-11 GI Bill.  It is reasonable to presume that had she been aware of the procedure to transfer her benefits while serving in an active duty or Reserve status, she would have done so.

5.  As a matter of equity, it would be appropriate to correct her records to show she transferred her education benefits to her son in a timely manner prior to her effective date of retirement.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed her application and the Army approved her request to transfer her Post-9/11 GI Bill benefits to her eligible family member prior to her retirement from active duty and the USAR on 25 August 2009, provided all other program eligibility criteria are met.



      _______ _   __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)                                         AR20150002422





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ABCMR Record of Proceedings (cont)                                         AR20150002422



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