IN THE CASE OF: BOARD DATE: 13 April 2020 DOCKET NUMBER: AR20170010701 APPLICANT REQUESTS: Entitlement to Post 9-11 G.I. Bill education benefits. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that she was discharged from the Army on 25 November 2013 due to a service connected disability. She initially enlisted and elected to participate in the Student Loan Repayment Program. She was advised that she was not entitled to education benefits under the Post 9-11 G.I. Bill because she failed to remain in the service for an additional 21 days. She is currently utilizing her vocational rehabilitation benefits to fund her college tuition, however, because she is unable to work full-time maintaining her household as a single parent has become financially challenging. She is a single mother of 4 children and her only other source of income is her VA benefit check. Should she be granted entitlement to the Post 9-11 G.I. Bill, she will be able to financially maintain her household as well as complete her Master’s Degree. Had she not been assaulted and raped by one of her superiors, she would still be serving in the military. 3. A review of the applicant’s available service records reflects the following: a. On 15 October 2010 she enlisted in the Army National Guard (ARNG) for 8 years. With this enlistment she elected to participate in the Loan Repayment Program (LRP). Paragraph 2j. of her Enlistment Agreement states that she understood that she must dis-enroll from the Montgomery G.I. Bill in order to qualify for this program. Further stated is that if she failed to complete disenrollment, she would not be eligible for LRP and would therefore become automatically enrolled in the Montgomery G.I. Bill. b. On 7 December 2010 orders were issued (Order# 341-807) discharging her from the ARNG effective 3 November 2010. c. On 4 November 2010 she enlisted in the Army for 3 years and 24 weeks. With this enlistment, she again elected to participate in the Loan Repayment Program. She provided a list of student loans to be repaid in the amount of $24,772.77. She completed DD Form 2366 (Montgomery G.I. Bill Act of 1984 (MGIB)) officially dis- enrolling in the MGIB. d. On 22 October 2013 a physical evaluation board convened finding her physically unfit for continued military service. e. On 13 November 2013 (Order# 317-0003) she was released from the Army and permanently retired due to a physical disability effective 25 November 2013. Her DD Form 214 reflects 3 years and 22 days of active service. 4. The applicant did not provide supporting documentation. 5. On 20 February 2020 an advisory opinion was obtained from the Human Resources Command, Chief of Education Incentives Branch who recommends that the applicant’s request for entitlement to Post 9-11 G.I. Bill education benefits be disapproved. a. Public Law 110- 252 § 3322(b) states "Inapplicability of Service Treated Under Educational Loan Repayment Programs - A period of service counted for purposes of repayment of an education loan under chapter 109 of title 10 may not be counted as a period of service for entitlement to educational assistance under this chapter. "The U.S. Army Post 9/11 GI Bill Policy Memorandum dated 10 July 2009, paragraph 6d, defined the Active Duty Service Obligation (ADSO) associated with the Loan Repayment Program under chapter 109 of title 10 is the ''first three years of active duty service regardless of the length of the initial service obligation.” b. The applicant’s first three years of active duty from 2 November 2010 to 1 November 2013 cannot be counted as qualifying for the Post 9/11 GI Bill. Her Basic Active Service Date was adjusted from 4 November 2010 to 2 November 2010 due to a previous Army National Guard Enlistment Contract (she served 2 active duty days before contract was terminated). c. Public Law 110-252, section 3311 (b)(8)(A) outlines the eligibility criteria, "serves an aggregate of at least 90 days" in order to qualify for the Post 9/11 GI Bill. The applicant did not establish eligibility for Post 9/11 GI Bill (PGIB), Chapter 33, Title 38, U.S. Code, due to no qualifying active duty on/after 11 September 2001 as she only had 24 days of qualifying service. A complete copy of the advisory is available for the Board to review. 6. On 2 March 2020 the applicant was provided with a copy of the advisory opinion to review and provide comments. As of 31 March 2020 the applicant had not responded. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. Based on a preponderance of evidence, the Board determined that there was no error or injustice concerning the applicant’s Post 9-11 G.I. Bill education benefits. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) paragraph 9-9 (Enlistment Program) under “Loan Repayment Plain Incentive Option” it states that to qualify for the Loan Repayment Program (LRP) the Soldier must dis-enroll from the MGIB or the Post 9-11 G.I. Bill. 3 Title 38 USC, section 3011(3)(c) states, an individual described in subsection (a)(1)(A) (becomes a member of the Armed Force after 30 June 1985) of this section may make an election not to receive educational assistance under this chapter. Any such election shall be made at the time the individual initially enters on active duty as a member of the Armed Forces. Any individual who makes such an election is not entitled to educational assistance under this chapter (MGIB). 4. Public Law 110- 252 § 3322(b) states Inapplicability of Service Treated Under Educational Loan Repayment Programs - A period of service counted for purposes of repayment of an education loan under chapter 109 of title 10 may not be counted as a period of service for entitlement to educational assistance under this chapter. 5. Public Law 110-252, section 3311 (b)(8)(A) outlines the eligibility criteria, "serves an aggregate of at least 90 days" in order to qualify for the Post 9/11 GI Bill. 6. The U.S. Army Post 9/11 GI Bill Policy Memorandum dated 10 July 2009, paragraph 6d, defined the Active Duty Service Obligation (ADSO) associated with the Loan Repayment Program under chapter 109 of title 10 is the ''first three years of active duty service regardless of the length of the initial service obligation.” //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010701 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1