BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150001717 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150001717 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. ___________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. BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150001717 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 correction of his records to show he elected transfer of his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. He requested approval of an exception to policy (ETP) in July 2014 through his career counselor since he was in the Integrated Disability Evaluation System (IDES) process and could not extend or reenlist. The career counselor retired prior to completion of his paperwork. To date there is still no replacement. b. He spoke to the education office and they said they didn't handle that. He then called the U.S. Army Human Resources Command at Fort Knox, KY, and they stated there was nothing that could be done. 3. The applicant provides: * TEB printout, dated 23 July 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * retirement orders, dated 16 December 2014 * DA Form 31 (Request and Authority for Leave) * DA Form 199 (Informal Physical Evaluation Board Proceedings) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 28 September 2007. He served as a practical nurse in Iraq from 2 December 2008 to 17 November 2009. 2. Records show he received adverse action flags on: * 8 October 2013 * 25 November 2013 * 9 January 2014 3. On 19 January 2014, he was enrolled in the IDES. 4. He provided a TEB printout, dated 23 July 2014, showing he submitted an electronic request through MilConnect to transfer his education benefits to his dependents. 5. Records show he received another adverse action flag on 23 December 2014. 6. On 14 February 2015, he retired due to temporary disability (enhanced) after completing 7 years, 4 months, and 17 days of total active service. 7. In the processing of this case, an advisory opinion was obtained from the Section Chief, Finance and Incentives Branch, U.S. Army Human Resources Command, dated 10 November 2015. The advisory official recommended disapproval of the applicant's request. The opinion stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, this law limits eligibility to transfer 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. b. On 8 October 2013, 25 November 2013, 9 January 2014, and 23 December 2014, the applicant received negative action flags (adverse action flags) during the time frame of his TEB request on 23 July 2014 and up to his retirement effective date (14 February 2015). c. If the applicant had requested TEB between 28 September 2013 and 8 October 2013 (before the adverse action flag) and had extended or reenlisted to obtain 4 years of eligibility from a TEB request date, he would have been approved for TEB. He was eligible to transfer education benefits at that time without needing an approved ETP because he was not yet in the IDES. d. On 19 January 2014, he was enrolled in the IDES. e. Once enrolled in the IDES and due to the fact that he had 6 to less than 10 years of service, he had to request and receive an approved ETP from the Department of the Army, G-1, Directorate of Military Personnel Management Enlisted Professional Development Branch to extend or reenlist. He had to receive the approved ETP and extend or reenlist before being found unfit for duty. He did not obtain the approved ETP; therefore, he was not eligible to extend or reenlist for the TEB. He also had to be cleared of the adverse action flags to be eligible to extend or reenlist. f. On 17 November 2014, he was found unfit for duty. He also still had the adverse actions flags in effect. Therefore, he could no longer receive an ETP or extend or reenlist to obtain 4 years of eligibility from a TEB request date. g. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense (DOD), and Department of Veterans Affairs (VA), initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits. The applicant's last day in the service was 14 February 2015 which was not within the first 90 days after the program's implementation. 8. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of 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 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. 2. 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 3. DOD, the Army, and the VA initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits to dependents. DISCUSSION: 1. The applicant's 23 July 2014 TEB request was noted. However, the evidence shows he received adverse action flags from October 2013 to December 2014. He had to be cleared of the adverse action flags to be eligible to extend or reenlist for TEB. 2. The advisory opinion stated: a. If he had requested TEB between 28 September 2013 (6-year mark) and 8 October 2013 and had extended or reenlisted to obtain 4 years of eligibility from a TEB request date, he would have been approved for the TEB. b. He was enrolled in the IDES on 19 January 2014. c. Once enrolled in the IDES and due to the fact that he had 6 to less than 10 years of service as of that time, he had to request and receive an approved ETP to extend or reenlist. He had to receive the approved ETP and extend or reenlist before being found unfit for duty. Though he initiated an electronic request to transfer his education benefits to his dependents, he did not obtain an approved ETP during the required time frame (while enrolled in the IDES) and further he was not eligible to extend or reenlist due to adverse action flags. Therefore, he was not eligible to extend or reenlist for the TEB. d. On 17 November 2014, he was found unfit for duty. He also still had the adverse actions flags in effect. He could no longer receive an approved ETP or extend or reenlist to obtain 4 years of eligibility from a TEB request date. 3. His remaining contentions were carefully considered. However, the law states a member must have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election, or have at least 10 years of service and be precluded by standard policy or statute from extending. 4. The evidence shows he retired due to disability effective 14 February 2015 after completing 7 years, 4 months, and 17 days of total active service. 5. If he had completed at least 10 years of service he could have elected to transfer his Post-9/11 GI Bill benefits because he would have been precluded from incurring a 4-year service obligation upon his election. Unfortunately, he did not complete 10 years of service and he was not eligible due to the adverse action flags to extend solely to get him to that 10-year point. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001717 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2