BOARD DATE: 16 February 2016 DOCKET NUMBER: AR20150003597 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 an exception to policy (ETP) to permit the transfer of his education benefits to his spouse and children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in effect: * he was eligible to transfer his Post 9/11 education benefits * he submitted all of the required documentation to enable this transfer, but the U.S. Army Human Resources Command (HRC) determined he did not complete all requirements on time * he contends HRC erroneously disapproved his request * in November 2014, he was placed on the Permanent Disability Retired List (PDRL) 3. The applicant provides: * DA Form 3349 (Physical Profile), signed 13 February 2014 * pages 1 and 2 of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 14 August 2014 * DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army), signed 18 August 2014 * DA Form 4187 (Personnel Action), signed by the applicant on 18 August 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 November 2014 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 31 January 2008. He served in a variety of positions and was deployed three times (once to Kuwait and twice to Iraq). He rose to the rank/grade of staff sergeant/E-6. In July 2012, he was struck by a car and sustained serious injuries which ultimately required referral into the Integrated Disability Evaluation System (IDES). 2. In or around November 2013, the applicant was enrolled in the IDES process. He was given a Compensation and Pension (C&P) medical examination by the Department of Veterans Affairs (VA) on 3 December 2013 and evaluated by the medical evaluation board (MEB) physician on 5 December 2013. 3. He attained 6 years of service on 30 January 2014. 4. On 12 February 2014, an MEB determined he had six medical conditions which failed retention standards. They referred his case to a PEB for a fitness determination. 5. On 14 August 2014, a PEB found he was no longer physically fit for continued military service. The board recommended a disability rating of 80 percent and placement on the PDRL. a. On 22 August 2014, the applicant concurred with the findings of the PEB. b. Section XII (U.S. Army Physical Disability Agency (USAPDA) Authentication for the Secretary of the Army) was signed on 2 September 2014. This section contains the statement "The determinations on this form are not final for purposes of execution unless this section has been completed (emphasis added)." 6. On 26 November 2014, he was honorably retired. His DD Form 214 shows he completed 6 years, 9 months, and 26 days of net active creditable service. The separation authority is Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures). The narrative reason is listed as disability, permanent (enhanced (for having been determined in IDES)). 7. According the Department of the Army Deputy Chief of Staff for Personnel, G-1 (Army G-1), the applicant submitted three TEB requests: * 16 April 2014 - disapproved on 29 April 2014 due to the applicant not committing to the required additional service time * 26 August 2014 - disapproved on 20 October 2014 because the applicant did not commit to the required additional service time * 28 October 2014 - disapproved on 12 December 2014 based on the applicant not committing to the required additional service time 8. An advisory opinion, dated 24 April 2015, was obtained from HRC which recommended disapproval of the applicant's request. The advisory essentially stated: a. The applicant was enrolled in IDES on 13 November 2013 and became eligible for TEB on 31 January 2014, when he reached 6 years of service. At that point, he would have been required to either extend or reenlist so as to obtain the required four years of remaining service. Had he done so, he would not have needed an ETP based upon already being enrolled in IDES. b. The applicant requested TEB on 16 April 2014 and HRC rejected this request because he did not have sufficient retainability. c. The PEB found him unfit on 14 August 2014. Once this determination was made, he could no longer have an ETP granted. d. The applicant again requested TEB on 26 August 2014 and HRC denied this request on 20 October 2014. The reason was because he did not meet the remaining service requirement. e. He requested TEB for the third time on 28 October 2014 and, on 12 December 2014, HRC once more denied his request based upon the fact he had an approved disability retirement which was effective November 2014. 9. On 30 November 2015, the applicant was provided a copy of the advisory opinion and he did not submit a response. 10. The applicant provides: a. DA Form 3340-R, signed by the applicant on 18 August 2014, requesting reenlistment in the Active Component. His commander signed the same date and affirmed the applicant was fully qualified to reenlist. b. DA Form 4187 wherein the applicant requested an ETP for TEB and signed his request on 18 August 2014. His battalion commander, a lieutenant colonel (LTC), signed the form on 21 August 2014. 11. Public Law 110-252, as amended by Public Law 111-377, established the legal requirements on the transferability of unused Post 9/11 GI Bill benefits. This law limited the transfer to those members who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Additionally, the service member must have performed duties on or after 11 September 2001. 12. 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. 13. Policy Message 14-04, sent by the Army G-1, dated 1 October 2013, subject: Guidance for Active Component Enlisted Transfers of Post-9/11 GI Bill Education Benefits provided guidance to Army Retention personnel with regard to TEB. It also specifically addresses Soldiers who are pending a medical evaluation board (MEB)/physical evaluation board (PEB). a. HRC, Finance and Incentives Branch (FIB) was designated as the certifying/approving official for Regular Army enlisted Soldiers. HRC, FIB was tasked with approving/disapproving TEB requests. HRC, FIB also was responsible for approving those exceptions allowed by Army TEB policy. b. Apart of those medical conditions which might render the Soldier otherwise ineligible, Soldiers pending an MEB/PEB had to meet the required criteria for extension. c. They had to agree to an additional 4 years of service prior to receiving approval for a medical separation. "Once a medical board decision [sic, PEB decision] is made to separate a Soldier, he/she is no longer eligible for an exception to policy to extend to meet the service remaining requirement (SRR)." Exceptions were to be processed through the Command Career Counselor and approved by the Army G-1 (Retention). d. Packets had to include a DA Form 4187 signed by the first LTC in the Soldier's chain of command, a DA Form 3340, a DA Form 3349, an ERB, and a timeline by the servicing Career Counselor. e. If Soldiers were approved for an exception to policy to extend to meet the SRR for TEB, and are later approved for separation based on physical disability, HRC, FIB was to adjust the obligation end-date to match the Soldier's separation date. DISCUSSION AND CONCLUSIONS: 1. Army policy requires Soldiers who are in the IDES process, and who have at least 6 years, but less than 10 years of service, to submit an ETP to permit them to meet the requirement to have 4 years of retainability. Additionally, the ETP must be approved and the Soldier must have extended or reenlisted prior to the date a PEB's unfitness determination. 2. The evidence of record shows the applicant requested TEB three times. a. He was enrolled in IDES in or around November 2013, but did not have 6 years of service until January 2014. b. He submitted his first request for TEB in April 2014, which was disapproved for lack of SRR. c. On 18 August 2014, he requested to be extended so as to meet SRR. As required by the policy message, the DA Form 4187 he submitted was signed by the first LTC in his chain of command. Receipt of his request was acknowledged on 29 August 2014. d. The HRC official states in the advisory the applicant was no longer eligible for TEB once the PEB had made its determination on 14 August 2014. This is not consistent, however, with the guidance given by the Army G-1 in their policy message 14-04. (1) The guidance states eligibility ends once the PEB decision is made. Given the potential for additional actions which can occur following the convening of the PEB, actions such as a formal hearing, appeal, or modifications based upon reviews conducted by USAPDA, the PEB's decision is not affirmed, validated, and finalized until USAPDA completes section XII of the DA Form 199. (2) Section XII of the applicant's DA Form 199 was not completed, and thus, the PEB's decision was not finalized, until 2 September 2014. (3) The available record provides no explanation as to why the applicant's request for extension, while submitted in sufficient time to be processed and approved, languished without action until October 2014. e. The evidence of record also shows the applicant made one last unsuccessful attempt in October 2014 to gain approval for TEB. This request was not acted upon until after he was retired. 3. The applicant took the appropriate steps to meet the SRR requirements in sufficient time for his request to have been approved. He submitted his request on 18 August 2014 and his PEB was not finalized until 2 September 2014. His request for extension and associated request for TEB was not acted upon until October 2014. Based upon the foregoing, and as a matter of equity, it would be appropriate to correct his records to show his request for extension and subsequent request for TEB were approved within sufficient time so as to enable him to utilize TEB. 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 his ETP for SRR was approved on a date prior to the finalization of his PEB, that his request for TEB was approved, and that his obligated service date was then adjusted to the date of his retirement on 26 November 2014. _______ _ 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) AR20150003597 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003597 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1