BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150017383 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 May 2017 DOCKET NUMBER: AR20150017383 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 May 2017 DOCKET NUMBER: AR20150017383 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 to transfer his unused educational benefits to his eligible dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in effect, he was denied the ability transfer his benefits due to not having enough service time remaining. He feels this is unjust because he was medically boarded for post-traumatic stress disorder (PTSD) and did not get the opportunity to reenlist to meet the requirements. 3. The applicant provides no additional evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 9 August 2007. 2. The applicant completed a DD Form 2648 (Preseparation Counseling Checklist for Active Component (AC)…Service Members) on 8 June 2015, in which he checked the statement indicating he did not desire to receive additional counseling pertaining to education benefits, including the Post-9/11 GI Bill. 3. On 18 August 2015, an informal physical evaluation board (PEB) convened and found him medically unfit for service due to PTSD; left ankle chronic sprain; bilateral plantar fasciitis; left status post orthotripsy, right with spur; and right ankle chronic sprain, status post arthroscopy. The PEB recommended a combined rating of 70 percent and his placement on the Temporary Disability Retired List (TDRL) with a reexamination during May 2016. He concurred with the board's findings and recommendation. 4. Orders 253-0604, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY on 10 September 2015, released him from active duty effective 18 October 2015 and place him on the TDRL, effective 19 October 2015. 5. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired on 18 October 2015, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, temporary (enhanced). He completed 8 years, 2 months, and 10 days of net active service. 6. In the processing of this case, an advisory opinion was obtained on 6 April 2016, from the Chief, Finance and Incentives Team, U.S. Army Human Resources Command (HRC), Fort Knox, KY. The advisory official opined: a. Recommend disapproval of [Applicant's] request to transfer education benefits under the Post-9/11 GI Bill. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of Public Law 110-252 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, have at least six years in Active Duty or Selected Reserve status, and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the Transfer of Education (TEB) website at http://milconnect.dmdc.mil. All benefits must be transferred before the Service Member separates or retires. b. We empathize with [Applicant]; however, based on the details below, we do not recommend administrative relief for the following reasons: (1) On 9 August 2013, he was eligible for TEB on his six year point in service. He would have needed to extend or reenlist to commit to the four-year TEB service obligation. (2) On 20 May 2015, he was enrolled in the medical disability process through the Integrated Disability Evaluation System (IDES). Because he had six to less than 10 years of service and was in the IDES process, any TEB request on/after this date would require an exception to policy (ETP) though his unit to Army G-1 Enlisted Professional Development Branch to allow him to extend or reenlist to commit to the four-year TEB service obligation. (3) On 22 May 2015, he requested TEB. The HRC GI Bill Team pended the TEB request on 26 May 2015 and emailed [Applicant] at [email address] 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 four-year TEB service obligation since he was in the IDES process (Enclosure 1). 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 9 June 2015 because he had insufficient retain-ability and had not obtained the ETP to extend or reenlist (Enclosure 2). (4) On 18 August 2015, the PEB convened, found him unfit for duty, and formally counseled him on being found unfit for duty. Therefore, any TEB request submitted on or after this date would be rejected because any ETP request for him to extend or reenlist would be rejected by Army G-1. If the PEB changed the determination to fit for duty at a later date, [Applicant] would have returned to duty and could have requested TEB again. (5) On 11 October 2015, he requested TEB again. The HRC GI Bill Team rejected his TEB request on 13 October 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. (6) On 18 October 2015, [Applicant] was retired due to medical disability and was added to the TDRL effective 19 October 2015. c. Enclosures 1 and 2 were included with enclosure 1 telling the applicant the exact process and procedure needed to transfer his benefits and enclosure 2 informing him of the disapproval. 7. The advisory opinion was sent to the applicant on or about 27 April 2016, for his information and to afford him the opportunity to respond to its contents. He did not respond. 8. A review of the available records does not show he requested an ETP for an extension or to reenlist. REFERENCES: 1. 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. 2. 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. 3. 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 MEB/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 from 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 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 (Request for Reenlistment or Extension in the Regular army), a DA Form 3349 (Physical Profile), an Enlisted Record Brief, 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: 1. The applicant served on active duty from 9 August 2007 to 18 October 2015, a period of 8 years, 2 months, and 10 days. He was retired from the Army by reason of medical disability. 2. Army policy requires Soldiers who are in the IDES process to submit an ETP to permit them to meet the requirement to have 4 years of retainability. An ETP must be approved and the Soldier must have extended or reenlisted prior to the date of a PEB's unfitness determination. 3. The available evidence shows he was fully eligible to transfer his education benefits under the TEB prior to his IDES or retirement on or about 9 August 2013 but did not do so. He attempted to transfer after he was in the IDES process which would have required an ETP to be granted. The HRC GI Bill Team provided him with guidance on the correct process to take in order to garner an ETP prior to his unfitness determination; however, there is no evidence that he did so. Therefore, the HRC GI Bill Team rejected his request for a lack of an ETP and insufficient retainability. He again submitted a TEB request; however, it was after the PEB decision finding him unfit for duty and with a projected disability retirement date; therefore, his request was rejected due to no ETP and not enough service remaining time. In view of the facts of this case, the advisory official recommends disapproval of the applicant's request. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017383 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017383 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2