BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160002441 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: 26 September 2017 DOCKET NUMBER: AR20160002441 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: 26 September 2017 DOCKET NUMBER: AR20160002441 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 approval of an exception to policy (ETP) to allow him 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 he needs to be able to transfer his Post 9/11 GI Bill education benefits to his wife and daughters. When he was medically separated from the military, he had 9 years of active service, including three combat tours. When he out-processed through the Education Center at Fort Hood, TX, he was told he could not transfer the benefits to his family because he had not served for 10 years. After the fact, he found out that this was a lie and that even though he only had 9 years of active service, his contract was through 2017 and would have put him at 15 years of active service. He knows of many people after him who have been able to get this benefit through an ETP that was never offered to him. Therefore, whatever needs to be done to allow him to transfer his educational benefits is what needs to be corrected. The educational counselor that out-processed him at Fort Hood did not, for one reason or another, have the most current information regarding the transferability of benefits under the Post-9/11 GI Bill. Due to this, he did not get the appropriate information to make the most educated decision for himself and his family. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 6 May 2004. 2. The applicant's DD Form 214 shows he was discharged on 18 April 2013, by reason of physical disability with entitlement to severance pay, following his completion of 8 years, 11 months, and 13 days of active duty service. 3. There is no evidence indicating the applicant was deprived of information which was disseminated through a number of Army channels pertaining to the eligibility criteria for TEB provisions of the Post 9/11 GI Bill or evidence indicating he was given erroneous information regarding his eligibility for the Post 9/11 GI Bill TEB incentive. 4. The U.S. Army Human Resources Command (HRC) Soldier Management System shows the applicant's request for TEB was denied by HRC on or around 24 December 2015. HRC replied to the applicant as follows: "After reviewing your record, it appears that you did not obtain the exception to policy to extend or reenlist prior to your medical disability approval. Regretfully you are ineligible for the transfer of education benefits. If you believe an error has occurred, you may seek relief through the Army Review Board[s] Agency." 5. During the processing of this case, an advisory opinion was obtained from HRC, Army Education Incentives Branch. The advising official states: a. Recommend disapproval of the applicant's request to transfer Post 9/11 GI Bill education benefits. 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 90 days of qualifying Post 9/11 GI Bill service, 6 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 TEB website, http://milconnect.dmdc.mil. All benefits must be transferred before the Service Member separates or retires. b. They do not recommend administrative relief based on the following: (1) The Post 9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The option to transfer education benefits to a dependent is considered an incentive, not a benefit. The transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for service nor a transition benefit. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. (2) The TEB incentive does not require formal one-on-one counseling, group counseling, nor reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility as stated in paragraph above and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation. (3) On 6 May 2010, the applicant was eligible for TEB on his 6-year point in service. Since he had an expiration term of service date of 13 May 2012, he would have needed to extend or reenlist to commit to the 4-year TEB service obligation. (4) On 19 April 2012, the applicant 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 was in the IDES process, any TEB request on/after this date would require an ETP through his unit to Army G-1 Enlisted Professional Development Branch to allow him to extend or reenlist to commit to the 4-year TEB service obligation. (5) The TEB website shows he did not request TEB. (6) On 9 November 2012, the Physical Evaluation Board (PEB) convened, found the applicant 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, he would have returned to duty and could have requested TEB. (7) On 18 April 2013, he was discharged due to medical disability. 6. The advisory opinion was provided to the applicant for his information and to afford him the opportunity to provide additional comments and/or a rebuttal. He did not respond. REFERENCES: 1. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. The 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. 2. The Department of Defense (DoD) established the criteria for eligibility and the transfer of unused educational benefits to eligible family members on 22 June 2009. a. 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: (1) 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 (2) 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 (3) is or becomes retirement eligible during the period from 1 August 2009 through 31 July 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. b. 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 and document accordingly. 3. The Army released the Post-9/11 GI Bill Implementation Policy on 10 July 2009, which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. 4. The DoD, the Army, and the Department of Veterans Affairs initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent TEB. 5. Title 38, U.S. Code, section 3319, prohibits service members who are no longer serving 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 given erroneous information regarding his eligibility for the transfer of education benefits to his family members. However, there is no evidence in the available records that substantiates this contention. 2. The applicant served on active duty from 6 May 2004 to 18 April 2013, a period of 8 years, 11 months, and 13 days. He became eligible to transfer his unused education benefits to his eligible family members after 6 May 2010, the point at which he had accumulated 6 years of service. 3. The law governing the transferability of unused Post-9/11 GI Bill benefits places legal limitations on transferability. Members must register and complete transfer prior to leaving the service. The applicant was discharged on 18 March 2013 after it was determined that he was unfit for further service due to disability. There is no evidence that shows he attempted to transfer his unused education benefits to his eligible family members prior to his date of discharge. 4. The Army Education Incentives Branch at HRC recommended disapproval of the applicant's request based on his inability to acquire the additional service requirements upon his unfitness for duty determination. The HRC determination is based on Policy Message 14-04, dated 1 October 2013, which provided guidance to Army retention personnel with regard to TEB. The policy specifically addresses Soldiers enrolled in the medical disability process through IDES. However, this policy message was published after the applicant's discharge on 18 April 2013. 5. The DOD and Army conducted a public campaign that generated communications on the transfer of education benefits under the Post-9/11 GI Bill through military, public, and social media venues. The applicant did not provide evidence that shows he was deprived of information broadly disseminated through the public campaign. 6. The applicant's last day in the service was 18 April 2013, three years and 8 months after the implementation of the program and nearly three years after the date he became eligible to transfer his unused education benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002441 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002441 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2