BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150009138 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: 31 May 2016 DOCKET NUMBER: AR20150009138 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: 31 May 2016 DOCKET NUMBER: AR20150009138 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 to transfer educational benefits to his dependents under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he was placed in the Integrated Disability Evaluation System (IDES) on 19 May 2014. He did not receive any counseling from a career counselor concerning TEB. He was injured in Afghanistan when he walked over an improvised explosive device. He now suffers from post-traumatic stress disorder and traumatic brain injury. The ability to transfer his education benefits would financially assist his family. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Transfer from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 7 March 2006. On 25 April 2013, he reenlisted for 4 years. 2. An informal PEB found him physically unfit and recommended a disability rating of 80 percent and placement on the Temporary Disability Retired List (TDRL). 3. There is no evidence nor does he provide evidence that shows he transferred, or attempted to transfer, his education benefits to any of his dependents in accordance with the TEB provisions of the Post-9/11 GI Bill prior to his placement in the Integrated Disability Evaluation System (IDES) or prior to receiving his PEB results which found him unfit for continued service. 4. He was placed on the TDRL on 8 June 2015. 5. In the processing of this case, an advisory opinion was obtained from the Section Chief, Finance and Incentives Branch, HRC. The opinion recommended disapproval of the applicant’s request. The official stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Public Law 110-252 further limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on duty or as a member of the Selected Reserve on or after 1 August 2009. b. Although the applicant was injured in June 2012, he reenlisted for four years on 25 April 2013 which was one year before being enrolled in the IDES in 2014. If he had requested TEB on 25 April 2013, he would have incurred a four-year service obligation until 24 April 2017. Upon later approval by the PEB and an established retirement date for medical disability, his TEB service obligation would have been adjusted from 24 April 2017 to 7 June 2015. He did not transfer education benefits for two years before entering IDES in 2014. c. While in the IDES process he would have been denied extension or reenlistment until he obtained an ETP to extend or reenlist to gain service eligibility for TEB. After obtaining the ETP, he would have been required to extend or reenlist before receiving the PEB results on 9 March 2015. He requested TEB on 4 March 2015 and was pended on 9 March 2015 due to the need for him to extend or reenlist. However, on the same day he received the PEB results which found him unfit for continued service, so he was ineligible to extend or reenlist. d. Regretfully, he did not request TEB when eligible before and on his reenlistment date of 25 April 2013 and before receiving the PEB results on 9 March 2015. e. A Soldier may only transfer benefits to eligible dependents. To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible dependent status upon turning age 21, or at marriage. Eligible dependent status can be extended to age 23 if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of the state are not eligible for the benefit. One the benefits are transferred, children can use the benefit up to the age of 25. f. The TEB online database showed he had four eligible dependents enrolled in DEERS. He did not complete the requirements in the TEB online database because he claimed he was not aware of the requirement to obtain the ETP and extend/reenlist prior to receiving the results of the PEB. He was eligible well before his enrollment in the IDES process and during the timeframe when he was permitted to reenlist on 25 April 2013. g. A Soldier must have no adverse action flag and have an honorable discharge (or honorable service) to transfer the benefits. There was no evidence of adverse action in his record. He received an honorable character of service when placed on the TDRL. h. A Soldier should not be granted relief based on unawareness of the law, program rules or procedures unless they left the service during the implementation phase of the program. The Army, Department of Defense (DOD), and Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent TEB. 6. The applicant was provided a copy of the advisory opinion; however, he did not respond. REFERENCES: 1. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The DOD policy states an eligible individual 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 for the maximum amount of time allowed by such policy or statute. 2. The DOD 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. Requests to transfer Post-9/11 GI Bill benefits to eligible dependents are submitted through the DMDC web application. 4. Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post-9/11 GI Bill TEB 4-Year Service Obligation for Approved TEB Requests Submitted on/after 1 August 2013, was issued to emphasize that all TEB requests submitted on or after 1 August 2013 would incur a 4-year service obligation from the TEB request date regardless of years in service (except when precluded by policy or statute from committing to an additional 4 years). 5. Title 38, U.S. Code, section 3319, prohibits service members who are no longer on active duty from transferring educational benefits. The legislation specifically states "an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed." DISCUSSION: 1. The applicant contends he was placed in the IDES on 19 May 2014 and he did not receive counseling on the TEB program. 2. There is no evidence nor does he provide evidence that shows he transferred, or attempted to transfer, his education benefits to any of his dependents in accordance with the TEB provisions of the Post-9/11 GI Bill prior to his placement in the IDES or prior to receiving his PEB results which found him unfit for continued service. 3. He was approved for and reenlisted for four years on 25 April 2013 which was one year before being enrolled in the IDES in 2014. If he had requested TEB on 25 April 2013, he would have incurred a four-year service obligation until 24 April 2017. Upon later approval by the PEB and an established retirement date for medical disability, his TEB service obligation would have been adjusted from 24 April 2017 to 7 June 2015. He did not transfer education benefits for two years before entering the IDES system in 2014. 4. DOD, the VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. While there may have been some confusion during the early stages after the implementation, the applicant was placed on the TDRL over 6 years after the program was implemented. 5. The requirement to transfer the benefit while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009138 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009138 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2