ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20190001738 APPLICANT REQUESTS: * increase of his Post-9/11 GI Bill percentage from 60 percent to 80 percent * past payments for the Post-9/11 GI Bill account adjusted and paid to him APPLICANT’S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored notice of disagreement * Certificates of Eligibility for Post-9/11 GI Bill * DA Form 5016 (Chronological Statement of Retirement Points) * excerpt entitled Chapter 5 Education and Training * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records (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: * his chronological statement of retirement points shows 777 days of active duty from 2002-2010 that should be used to show 25 months of active duty * that equates to an 80 percent rating not the 60 percent he was paid * he's been sending notices of disagreement and supporting documents but his GI Bill never gets corrected * the Veteran's Affairs (VA) education benefits office stated they had no active duty for him * he had to contact Army Human Resource Command (HRC) to obtain an official DA Form 5016 * he previously sent VA all active duty orders and pay stubs but still received no correction 3. The applicant provides a self-authored notice of disagreement stating: * his DA Form 5016 shows 777 active duty days performed from 2002 through 2010 * he was given credit for 492 days * he's been objecting to the percentage given him for 3 years * he requests the corrections be retroactive and he get paid for the corrected percentage 4. The applicant provides certificates of eligibility from the VA dated 9 November 2018, 15 December 2016, and 11 September 2015. They show his eligible period for receipt of the post-9/11 GI Bill as: * 13 November 2009 through 15 November 2009 - 3 days * 15 December 2008 through 16 August 2009 - 306 days * 17 October 2001 through 17 April 2002 - 183 days * for a total of 492 days and 60 percent of the benefits 5. Title 38 (Veterans' Benefits), U.S. Code, states in Chapter 33 (Post-9/11 Educational Assistance (Post-9/11 GI Bill)), provides Veterans with up to 36 months of education benefits. To qualify, an RC service member must have at least 90 aggregate days of active service after 10 September 2001. All forms of inactive duty training (i.e. drills), as well as annual training do not qualify. 6. The applicant provides a copy of his DA Form 5016 which shows in column 8 (Active Duty Points) the following data: * 16 February 2009 through 15 February 2010 - 185 * 16 February 2008 through 15 February 2009 - 229 * 16 February 2007 through 15 February 2008 - 85 * 16 February 2006 through 15 February 2007 - 17 * 16 February 2005 through 15 February 2007 - 25 * 16 February 2004 through 15 February 2005 - 20 * 16 February 2003 through 15 February 2004 - 17 * 16 February 2002 through 15 February 2003 - 61 * 16 February 2001 through 15 February 2002 - 138 * this is a total of 777 active duty points 7. There is no distinction of the type of active duty points received for the years 2002 through 2010. There is no distinction of what active duty points the applicant received from January through February of 2002 in the period of 16 February 2001 through 15 February 2002. 8. MILPER Message Number 17-059 Title Change in Interpretation of Service Qualifying for Post 9/11 GI Bill (PGIB) states, beginning 1 Oct 16, the U.S. Army Human Resources Command (HRC) began counting Active Duty Training (ADT) performed after 10 Sep 01 as qualifying service for the post-9/11 GI Bill, because this service was performed pursuant to 10 USC 12301(d). 9. The applicant performed the following ADT periods under Title 10 USC after 10 September 2001. The orders do not list the section of Title 10 that these ADT periods were performed under: * Orders 006456 dated 11 January 2006 for 16 days * Orders 0149434 dated 21 April 2006 for 13 days * Orders 025026 dated 26 July 2006 for 4 days * Orders 020278 dated 30 June 2007 for 9 days * Orders 022349 dated 20 July 2007 for 10 days * Orders 051983 dated 1 May 2008 for 13 days * Orders 017221 dated 14 May 2008 for 8 days * Orders 017995 dated 20 May 2008 for 18 days * Orders 018386 dated 23 May 2008 for 17 days * Orders 018383 dated 23 May 2008 for 14 days * Orders 001727 dated 15 October 2008 for 45 days BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the orders in the records, the determination of the DVA regarding his eligibility and the requirements for establishing creditable active duty time for Post-9/11 GI Bill benefits. The Board found that the applicant’s orders indicated service under Title 10, but did not specify the section (under Title 10) that authorized his active duty. Based on the preponderance of evidence, the Board determined that there was insufficient evidence to determine if the applicant had additional qualifying service to change his eligibility (percentage) for Post 9/11 GI Bill benefits. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Member 1 Member 2 Member 3 : : : 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 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 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. 2. Title 38 (Veterans' Benefits), U.S. Code, states in Chapter 33 (Post-9/11 Educational Assistance (Post-9/11 GI Bill)), provides Veterans with up to 36 months of education benefits. To qualify, an RC service member must have at least 90 aggregate days of active service after 10 September 2001. All forms of inactive duty training (i.e. drills), as well as annual training do not qualify. 3. MILPER Message Number 17-059 Title Change in Interpretation of Service Qualifying for Post 9/11 GI Bill (PGIB) states, beginning 1 Oct 16, the U.S. Army Human Resources Command (HRC) began counting ADT, ADSW and ADOS-RC performed after 10 Sep 01 as qualifying service for the post-9/11 GI Bill, because this service was performed pursuant to 10 USC 12301(d). Effective 1 Aug 09, HRC began counting active duty performed pursuant to 10 USC 688, 12301(a), 12301(d) Mobilization / Contingency / ADOS-AC / CO-ADOS-AC, 12301(g), 12302, and 12304, Regular Army and other equivalent regular services, and 32 USC 502(f) for Operation Noble Eagle (11 Sep 1-31 May 02) and will continue to count this service. ABCMR Record of Proceedings (cont) AR20190001738 5