From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. § 1552 (b) DTM 09-003 dtd 22 Jun 09 (c) Title 38 U.S.C § 3301 (d) MCO 1001R.1K dtd 22 Mar 09 (e) RA policy email dtd 1 Aug 17 Encl: (1) DD Form 149 w/attachments (2) Subject’s naval record 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to establish Petitioner’s qualifying active duty service for Post-9/11 GI Bill education benefits. The Petitioner’s case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 16 July 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. In accordance with reference (b), the DVA is responsible for determining eligibility for education benefits under the Post-9/11 GI Bill. Generally, to be eligible for the Post-9/11 GI Bill, individuals must serve on active duty on or after 11 September 2011, for a least 30 continuous days with a discharge due to service-connected disability; or an aggregate period ranging from 90 days to 36 months or more. c. In accordance with reference (c), The term "active duty" has the meanings as follows (subject to the limitations specified in sections 3002(6) and 3311(b)):…In the case of members of the reserve components of the Armed Forces, service on active duty under a call or order to active duty under section 688, 12301(a), 12301(d), 12301(g), 12301(h), 12302, 12304, 12304a, or 12304b of title 10 or section 712 1 of title 14. d. In accordance with reference (d), Participation Requirements of the Reserve…Satisfactory participation requirements for each Training Pay Category (TPC) defined in section 3102 of this order are:…TPC B, comprised of SMCR (IMA), number of periods of IDT Required annual with pay is 48 (IMA billets are either paid or unpaid; unpaid are referred to as PIP billets.), maximum number of AT days (Including Travel) is 13. e. On 1 October 2009, Petitioner was involuntarily transferred to the retired reserve awaiting pay at age 60. Petitioner earned a total of 25 years, 10 months, and 8 days of qualifying service. f. On 21 December 2010, BCNR recommended that prior to Petitioner’s 1 October 2009 retirement for the armed forces he successfully completed the online election request to transfer his unused Post-9/11 GI Bill benefits to his dependents. g. On 6 December 2013, BCNR recommended that Petitioner was not retired on 1 October 2009, but served continuously after that date on the reserve active duty list (RASL) as a member of the individual ready reserve (IRR); and that he be reinstated accordingly to the RASL as a member of the IRR, in accordance with current service limitations. Furthermore, show career retirement points for each anniversary year (pro-rated for any partial years) Petitioner was removed from the RASL though his reinstatement to the RASL as follows: appropriate membership points, 21 non-paid inactive duty points and 169 non-paid active duty points. Finally, change Petitioner’s MRD to 1 June 2015. h. On 13 January 2014, Petitioner’s BCNR Board recommendation was reviewed by the Assistant Secretary of the Navy (Manpower and Reserve Affairs) and approved the Special Board’s recommended relief in each of those 12 cases (the case of “blank” is urgent and should be acted on by 1 June 2014). i. On 31 May 2015, Petitioner was transferred to the retired reserve awaiting pay at age 60. Petitioner earned a total of 31 years of qualifying service. j. On 13 October 2015, Petitioner was notified by the VA that he was entitled to receive 100% of the benefits payable under the Post-9/11 GI Bill program for training offered by an institution of higher education. Furthermore, beginning 18 February 2003 and ending 30 September 2013, Petitioner had accumulated 6 periods of service (18 February 2003 to 30 September 2003, 28 August 2005 to 15 May 2007, 15 April 2010 to 30 September 2010, 15 April 2011 to 30 September 2011, 15 April 2012 to 30 September 2012, and 15 April 2013 to 30 September 2013) for an aggregate total of 1,527 days. k. On 14 June 2016, Petitioner was notified by the VA that he was entitled to receive 80% of the benefits payable under the Post-9/11 GI Bill program for training offered by an institution of higher education. U.S. Marine Corps identified period 15 April 2010 to 30 September 2010, 15 April 2011 to 30 September 11, 15 [September] April 2012 to 30 September 12, and 15 April 2013 to 30 September 2013 under the authority Title 10, USC 1552. These 4 periods (676 days) performed under Title 10 USC 1552 are considered non-qualifying active duty service for Post-9/11 GI Bill education benefits. Therefore, Petitioner’s new service/training total was 851 days. l. On 1 August 2017, Reserve Affairs Policy notified Manpower and Reserve Affairs that in the case of Petitioner, the Director of Reserve Affairs recommended that he be awarded appropriate membership points, 21 non-paid inactive duty points, and 169 non-paid active duty points for each year that he was removed from the RASL (approximately 4.58 years). The number of points was established by taking the average of Petitioner's service during the five years preceding the SRB. This recommendation is what ultimately happened in Petitioner's case. These points were awarded in order to make Petitioner whole after his removal from the RASL by an incorrectly conducted SRB. The 775 points should be treated the same as paid active duty points for the purpose of determining benefits due to Petitioner. During the time period that these points were attained, Petitioner had been incorrectly removed from the RASL; therefore, there are no military orders that establish under what mobilization authority Petitioner was serving. However, it should be assumed that not more than 67 points were based on "Annual Training" and that at least 708 of these points were based on Petitioner serving on active duty orders. m. On 3 August 2017, HQMC notified BCNR that after further review they found that Petitioner had approximately 34 months of qualifying service equivalent to 90% of maximum Post-9/11 GI Bill benefits payable, and that the DVA confirmed that SNO’s eligibility percentage has been increased to 90 % as of 7 July 2007. CONCLUSION Upon review and consideration of all the evidence of record, and especially in light of the contents of reference (e), the Board finds the existence of an injustice warranting the following corrective action. The Board concluded that on 13 January 2014, SECNAV approved the Special Board’s recommendation, to change Petitioner’s retirement to reflect 1 June 2015, which included qualifying years, each worth the appropriate membership points, 21 non-paid inactive duty points, and 169 non-paid active duty points per qualifying year. The Board also concluded that Petitioner was awarded 4.58 qualifying years, equaling 774 non-paid active duty points. 60 of those points were for annual training and did not qualify for Post-9/11 GI Bill education benefits, totaling 714 days of qualifying active duty service. However, an injustice occurred when the VA deemed the following periods performed under Title 10 USC 1552 were considered non-qualifying active duty service for Post-9/11 GI Bill education benefits: 15 April 2010 to 30 September 2010, 15 April 2011 to 30 September 2011, 15 April 2012 to 30 September 2012, 15 April 2013 to 30 September 2013. Petitioner required at least 36 months in order to receive 100% maximum benefit payable, which he would have had if the above periods had counted. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: Petitioner earned 714 days of qualifying active duty service for the purposes of Post-9/11 GI Bill education benefits during the following periods: 15 April 2010 through 30 September 2010 (169 days) 15 April 2011 through 30 September 2011 (169 days) 15 April 2012 through 30 September 2012 (169 days) 15 April 2013 through 30 September 2013 (169 days) 15 April 2014 through 23 May 2014 (38 days) A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of the reference, has been approved by the Board on behalf of the Secretary of the Navy.