BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015558 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: 2 March 2017 DOCKET NUMBER: AR20150015558 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: 2 March 2017 DOCKET NUMBER: AR20150015558 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, in effect, an exception to policy (ETP) to transfer educational 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 was misinformed by both his education counselor and his unit career counselor at Fort Bliss, TX, when approaching his expiration of term of service. He was unable to complete the TEB application due to the negligent acts of those responsible to specifically handle his educational benefits during his out-processing. b.  He was told by the education counselor that once he received his separation orders, he was to send an email to the address listed at the top of the milConnect website. After reading that he was not to use the website, he spoke with his counselor and she advised him to do it anyway because that was how it was supposed to be done. He spoke with his unit-level career counselor after doing what he was directed to do. c.  Staff Sergeant S____ B____ informed him that he would not be able to complete the task until he received his separation orders and he had a working copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). He waited over 1 month for publication of his orders and returned with the appropriate paperwork. He called the education benefits hotline approximately 1 week or so afterward to see if his paperwork had been completed, only to learn that he was misinformed and the paperwork needed to be completed prior to publication of his orders. He had plenty of time while he was waiting for publication of his orders to complete the paperwork. 3. The applicant provides a memorandum for record from the 1st Armored Division Artillery Brigade Senior Career Counselor, dated 10 July 2015, subject: Transfer of Education Benefits for (Applicant). CONSIDERATION OF EVIDENCE: 1. On 9 May 2006, he enlisted in the Regular Army for a period of 4 years. 2. On 15 January 2013, he reenlisted for a 3-year period. 3. On 23 January 2015, he again reenlisted for a period of 3 years. 4. On 18 March 2015, a physical evaluation board (PEB) found him physically unfit and recommended: * a 10-percent disability rating for lumbago, stable post-operative changes L5-S1 with residuals of pain, unchanged bilateral spondylolysis of L5 with grade 1 spondylolysis * separation with severance pay 5. On 18 March 2015 and after being counseled on the findings and recommendations, he concurred with the PEB. He waived a formal hearing of his case and he elected not to request reconsideration of his Department of Veterans Affairs ratings. 6. On 26 March 2015, the findings and recommendations of the PEB were approved. 7. On 24 June 2015, he was discharged accordingly. His DD Form 214 shows his narrative reason for separation as disability, severance pay, non-combat (enhanced), and he received disability severance pay. He completed 9 years, 1 month, and 16 days of active military service. 8. He provided a memorandum for record, dated 10 July 2015, from the Senior Career Counselor, 1st Armored Division Artillery Brigade, Fort Bliss, TX, wherein he stated: a.  The applicant submitted a TEB request on two prior occasions, but they were dismissed for not meeting the time-remaining requirement. On the third and final request, he was able to see his servicing career counselor and he was informed of the requirements for an ETP. b.  He was given erroneous information by the Fort Bliss Education Center. He was advised by the servicing career counselor to bring in a working copy of his DD Form 214 and his separation orders. c.  He submitted his DA Form 4187 (Personnel Action) for an ETP and his separation orders to the servicing career counselor to start the process for the ETP. His ETP was rejected at the division level due to not meeting criteria outlined in internal TEB Policy Message 15-04 (change 2) and did not go forward to the U.S. Army Human Resources Command (HRC) G-1 for final disposition. The applicant is not at fault and should be afforded the opportunity to transfer his educational benefits. 9. On 29 August 2016, the Chief, Army Education Incentives, HRC, provided an advisory opinion in which he recommended denial of the applicant's request. He stated: a.  On 9 May 2012, the applicant was eligible for TEB at the 6-year point in his service. He would have needed to extend or reenlist to commit to the 4-year TEB service obligation. b.  On 15 January 2013, he reenlisted for a period of 3 years. He would have been eligible to request TEB if he had reenlisted for 4 or more years. c.  On 8 December 2014, he was enrolled in the medical disability process through the Integrated Disability Evaluation System (IDES). Because he had 6 to less than 10 years of service and he was in the IDES process, any TEB request on or after that date would require an ETP through his unit to the Army G-1 Professional Development Branch to allow him to extend or reenlist to commit to the 4-year TEB service obligation. d.  On 18 March 2015, the PEB found him unfit for duty. Therefore, any TEB request submitted on or after that date would be rejected because any ETP request to extend or reenlist would have been rejected by Army G-1. If the PEB changed the determination to fit for duty at a later date, he would have returned to duty and could have requested TEB again. e.  On 23 April 2015, he requested TEB. The HRC GI Bill Team suspended the TEB request on 24 April 2015 and emailed the applicant, notifying him of the necessary actions he would have to take to obtain an ETP to allow him to extend or reenlist to commit to the 4-year TEB service obligation since he was in the IDES process. He did not obtain the ETP. He did not notify the HRC GI Bill Team of the ETP status. Therefore, the HRC GI Bill Team rejected the request on 11 May 2015 because he had insufficient retainability and he had not obtained the ETP to extend or reenlist. f.  On 20 May 2015, he requested TEB again. The HRC GI Bill Team suspended the TEB request on 21 May 2015 and emailed him again, notifying him of necessary actions he would have to take to obtain an ETP to allow him to extend or reenlist to commit to the 4-year TEB service obligation since he was in the IDES process. He did not obtain the ETP. He did not notify the HRC GI Bill Team of the ETP status. Therefore, the HRC GI Bill Team again rejected the request on 5 June 2015 because he had insufficient retainability and he had not obtained the ETP to extend or reenlist. g.  On 5 June 2015, he requested TEB once more. The HRC GI Bill Team rejected his TEB request on 8 June 2015 and emailed him, notifying him of the rejection. At this point, he could not obtain an ETP to extend or reenlist due to his approved projected medical disability retirement (should read separation). h.  On 24 June 2015, he was discharged due to disability with severance pay, non-combat (enhanced). i.  He provided no proof that he received erroneous counseling by the Education Center. The memorandum for record he provided is signed by the 1st Armored Division Artillery Brigade Senior Career Counselor, not the Fort Bliss Education Center. The senior career counselor presumed he received erroneous counseling by the Education Center, but provided no substantiating evidence. j.  The Department of the Army Post-9/11 GI Bill policy memorandum was available to him 5 years before he entered the IDES process. He could have requested TEB prior to entering the IDES process to establish eligibility; however, he did not. k.  A Soldier should not be granted relief based on unawareness of the law, program, rules, or procedures unless the Soldier left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense (DOD), and Department of Veterans Affairs initiated a comprehensive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent TEB. His first TEB request was submitted on 23 April 2015, which was not within the 90-day implementation phase. 10. On 31 August 2016, a copy of the advisory opinion was sent to the applicant for review and for an opportunity to respond. 11. On 27 September 2016 and 1 October 2016, he responded and stated, in part, he submitted his TEB request through the milConnect website on 23 April 2015 as advised by the Fort Bliss Education Center. The mistake was made by someone appointed to the position of senior career counselor and everything could have been avoided had his ETP request been acted on without waiting for publication of orders. REFERENCES: 1. DOD Directive-Type Memorandum 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members. 2. 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, provides that all Post-9/11 GI Bill TEB requests submitted and approved on/after 1 August 2013 will incur a 4-year service obligation from the TEB request date, regardless of years in service, except when precluded by either policy or statute from committing to an additional 4 years (e.g., Temporary Early Retirement Authority). 3. All service members requesting transfer of Post-9/11 GI Bill benefits must make the request through the TEB website, accessible through http://milconnect.dmdc.mil. Requests must be made while the member is still serving on active duty or as a member of the Selected Reserve. Service members who have already retired or separated are ineligible to transfer benefits. 4. DOD Instruction 1341.13 (Post-9/11 GI Bill) requires that service members who have at least 6 years but less than 10 years of service must agree to an additional 4-year year service obligation from the TEB request date. However, Soldiers within this time frame in the IDES process are not permitted by U.S. Army retention policy to extend or reenlist for the additional 4-year service obligation. 5. The HRC website shows a request for an ETP to extend or reenlist must be approved. a.  To initiate a request for an ETP, a Soldier must contact the servicing career counselor to request initiation of an ETP to extend or reenlist to meet the additional service obligation. The ETP request must be approved and the Soldier must extend or reenlist for the additional 4-year service obligation prior to the PEB finding the Soldier is physically unfit and recorded in a DA Form 199 (Informal PEB Proceedings), block 9 (Soldier's Election). The career counselor must process the request for an ETP to the Enlisted Professional Development Branch (the policy proponent for retention and the Post-9/11 GI Bill) of the Enlisted Career Systems Division, Directorate of Military Personnel Management, Department of the Army Office of the Deputy Chief of Staff, G-1. b.  Upon approval of an ETP, the career counselor will assist the Soldier in extending or reenlisting and submitting the TEB request. All of this must be done prior to the PEB finding the Soldier is physically unfit and recording in a DA Form 199. DISCUSSION: 1. Although he argues he was miscounseled about the ETP process, the evidence shows the HRC GI Bill Team advised him of what he needed to do to obtain an ETP. 2. The applicant was serving on active duty when the TEB provision was implemented in August 2009 and he continued serving for over 4 years after the program was implemented. He was eligible for the TEB provisions of the Post-9/11 GI Bill in 2013 at the 6-year point in his service and had he reenlisted for 4 or more years on 15 January 2013, he would have been eligible to request TEB. 3. He had ample time to submit his application and/or to verify that his application was properly submitted and accepted prior to being found unfit by the PEB. There is neither an error nor an injustice in the applicant's TEB process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015558 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015558 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2