IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170003639 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170003639 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20150007475, dated 16 March 2016. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed and the Army approved, in a timely manner, his application to transfer his unused education benefits to his eligible dependent(s), effective 17 March 2015 and provided all other program eligibility criteria were met, in accordance with the Transfer of Education Benefits provisions of the Post-9/11 GI Bill. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to redacting information from ABCMR Docket Number AR20150007475, dated 16 March 2016, and showing he served 24 months in a key developmental position on his nonrated time statements. _____________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. IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170003639 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: a. reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20150007475 on 16 March 2016. Specifically, he requests correction of his records to show he transferred his unused education benefits to his eligible dependent(s) in April 2014, in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill; b. that damaging and unjustified entries within the Record of Proceedings (ROP) in Docket Number AR20150007475 be redacted; and c. that his statements covering 24 months of non-rated time reflect he successfully served in a key developmental (KD) position. 2. The applicant states, in effect: a. In the previous docket, the ABCMR rescinded his retirement and authorized full back pay and entitlements. That decision supports and justifies his previous request to transfer his unused Post-9/11 GI Bill benefits, retroactive to April 2014. b. The findings of the ABCMR unjustly cite false information by the police officer as evidence. This information could have an adverse effect on his upcoming promotion to lieutenant colonel (LTC)/O-5 or could result in the U.S. Army Human Resources Command (HRC) conducting an unjustified grade determination board. c. He requests the removal of language regarding the unlawful arrest and false allegation levied by the police officer. He provided a copy of the expungement order from the Commonwealth of Kentucky Court of Justice, dated 5 August 2015, for the ABCMR to consider in the original case. Any continuance to cite the unlawful arrest and false allegation is a direct violation of the court order. d. The decision of the ABCMR required HRC to expunge a general officer memorandum of reprimand (GOMOR), Board of Inquiry (BOI) findings, and two illegal officer evaluation reports (OER) from his official military performance file (OMPF). However, the detailed information of the expunged documents in the ROP is available for review by promotion boards and will continue to be discriminative. e. Despite the positive ABCMR decision, failure to remove false and derogatory information from the ROP filed in his OMPF is detrimental to him and his ability to remain competitive. The false information will continue to persecute him as a discriminator for promotion, advanced schooling, and command selection boards. f. HRC fails to recognize the 24 months of successful KD time he completed as the Brigade S-7, Information Operations Officer, with statements of non-rated time that replaced two illegal OERs expunged from his record. Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management) states majors (MAJ) must serve 24 months cumulative service in a Functional Area (FA) 30 assignment to be competitive for promotion to LTC. The refusal to recognize the completed KD time continues to serve as an injustice to him and his true potential for promotion and continued service in the Army. 3. The applicant provides a highlighted copy of the ROP for ABCMR Docket Number AR20150007475, dated 16 March 2016. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150007475 on 16 March 2016. 2. The applicant provides a new statement in support of the requested relief, which constitutes new evidence that was not considered by the Board in its initial consideration of his case. Therefore, this new evidence now warrants consideration. 3. The applicant is currently serving in the Regular Army at the rank of MAJ. His primary area of concentration (AOC) is 15A (Aviation) and his FA is 30A (Information Operations Officer). 4. ABCMR Docket Number AR20150007475 on 16 March 2016, shows: a. The applicant requested the following relief: * removal of his GOMOR * removal of two OERS * correction of his records to show his successful appeal of his mandatory retirement and retention on active duty * correction of his records to show he is authorized to transfer his unused education benefits under the TEB provisions of the Post 9/11 GI Bill b. the Board recommended partial relief of his request as follows: * removal of the contested GOMOR and OERs * adding statements of non-rated time in lieu of the contested OERs * revoke his retirement orders and reinstate him on active duty * pay him back pay and allowances due as a result of the recommended reinstatement c. the Board recommended denial of that portion of his request concerning his authorization to transfer Post 9/11 GI Bill education benefits. The Board concluded that if he was reinstated to active duty as a result of the recommendations, he would then have the opportunity to transfer his education benefits. 5. Orders 160-0151, issued by Headquarters, U.S. Army Garrison, Fort Knox, KY on 8 June 2016, rescinded his retirement orders. 6. The ROP for ABCMR Docket Number AR20150007475 was uploaded to the restricted folder of his OMPF on 4 August 2016. The applicant's GOMOR was removed from his OMPF and HRC provided two separate nonrated statements to replace the two contested OERs; both noted that the respective evaluation report had been voided and the period was declared nonrated. 7. The applicant provides a highlighted copy of the ROP for ABCMR Docket Number AR20150007475, wherein he highlights certain language he wishes to have redacted. Although the information was applicable to that case and the Board's decision with respect to the recommended relief, he believes that if read by members of a promotion board, advance schooling board, or command selection board, the information will negatively impact those career decisions. 8. In the processing of this case, an advisory opinion was obtained on 25 April 2017 from the Chief, Army Education Incentives Branch, HRC, Fort Knox, KY. The advisory official recommended approval of the applicant's request to transfer his unused transfer Post-9/11 GI Bill education benefits, noting: a. They recommended approval of his request to transfer Post 9/11 GI Bill education benefits not earlier than his initial transfer request date of 17 March 2015. The Post 9/11 GI Bill is a service member's benefit; however, the TEB is an incentive requiring service calculated from the TEB request date. It is the Soldier's responsibility to know the TEB requirements. b. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Section 3020, 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 commit to the required service obligation. The U.S. Army Post 9/11 GI Bill Policy memorandum, dated 10 July 2009, requires no current negative action flag, but requires transfers of benefits to the dependents through the TEB website, milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. Based on the following paragraph, their office does recommend administrative relief for the applicant. c. The applicant had from 28 June 2009 to research the TEB requirements and submit a TEB request via the TEB website, but he failed to do so until 17 March 2015. Their office rejected that TEB request since he had already been selected for separation on 30 July 2014. He requested a military record correction from the ARBA in 2015 for TEB correction, in addition to other corrections to his military record. ARBA granted partial relief to reinstate him on active duty without a break in service, which would have allowed his TEB approval when he applied on 17 March 2015. d. The applicant states he would like his TEB request backdated to April 2014 due to ARBA's granting partial relief and reinstating him on active duty; however, the TEB website indicates he did not successfully submit an initial TEB request unit 17 March 2015. If ARBA grants administrative relief to backdate his TEB, the TEB begin date should be no earlier than 17 March 2015. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the 90-day implementation phase. The U.S. Army, Department of Defense, and Department of Veterans Affairs (DVA) initiated a public campaign plan that generated communications through military, public, and social media venues on the Post 9/11 GI Bill and TEB. Based on the previous information, the applicant provided no documentation showing he successfully submitted a TEB request through the TEB website in 2014. 9. The applicant was provided a copy of the HRC advisory opinion on 2 May 2017 for information and to allow him the opportunity to submit comments or a rebuttal. He responded on 22 May 2017; he noted his concurrence with the HRC TEB advisory opinion. REFERENCES: 1. The Department of Defense (DoD) established, on 22 June 2009, the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy stated eligible individuals included 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, were eligible for the Post-9/11 GI Bill, and: a. had at least 6 years of service in the Armed Forces on the date of election and agreed to serve 4 additional years in the Armed Forces from the date of election; or b. had at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, was precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agreed to serve for the maximum amount of time allowed by such policy or statute; or c. were, or became, retirement eligible during the period 1 August 2009 through 1 August 2013. 2. DA Pamphlet 600-3 serves primarily as a professional development guide for all officers. It does not prescribe the path of assignments or educational requirements that will guarantee success, but rather describes the full spectrum of developmental opportunities an officer can expect for a successful career. This document also serves as a mentoring tool for leaders at all levels and is an important personnel management guide for assignment officers, proponent, and Headquarters, Department of the Army (HQDA) selection board members. Its focus is the development and career management of all officers of the U.S. Army. a. KD positions are specified by branch or FA, and revised periodically. A KD position is one that is deemed fundamental to the development of an officer’s capabilities in their core branch or FA competencies or deemed critical by the senior Army leadership to provide experience across the Army’s strategic mission. The majority of these positions fall within the scope of the officer’s branch or FA mission. b. The DA Pamphlet 600-3 Smart Book shows KD assignments for aviation MAJs are those that assist them for promotion, either in the aviation branch or in an FA. MAJs should seek KD assignments and should serve in one or more of the following assignments for 12 to 24 months to acquire KD time: battalion/brigade executive officer; battalion/brigade S3; or command positions coded for MAJs. c. FA30 KD positions for MAJs include those at the 1st Information Operations Command, Division, Corps, and Army Service Component Command (ASCC) levels. In accordance with the Chief of Staff of the Army's guidance, assignments with transition teams/provincial reconstruction teams are considered KD assignments. 3. DA Form 4037 (Officer Record Brief (ORB)) Section IX (Assignment History) shows the amount of months, the organization, station, and duty title and AOC for which officers previously served and currently serves in. Human Resource professionals and career branch managers use the Electronic Military Personnel Office (eMILPO) to update assignment history on the ORB. 4. The Chief, Army Soldier Records Branch, HRC, assisted in clarifying what is reviewed by selection boards in similar situations where applicants were concerned about information cited within ROPs. No boards will review ABCMR ROPs. Generally, selection boards do not see documents in the restricted folder of the OMPF. However, there are exceptions when selected derogatory documents within the restricted folder (e.g. GOMORs, Article 15s, etc.) are reviewed depending on the needs of the selection board. DISCUSSION: 1. The applicant requests transfer of his unused Post 9/11 GI Bill education benefits, the redacting of comments from a prior ROP, and correction of his records to show he successfully served 24 months in a KD position. 2. An advisory opinion was obtained from HRC in which the advisory official recommended approval of the applicant's request to backdate his election form to show he first applied to transfer his Post 9/11 GI Bill education benefits on the TEB website on 17 March 2015. 3. The applicant contends that, despite the positive ABCMR decision in Docket Number AR20150007475, the failure to remove false and derogatory information from the ROP filed in his OMPF is detrimental to him and his ability to remain competitive. He believes the false information will continue to persecute him as a discriminator for promotion, advanced schooling, and command selection boards. The applicant is advised selection boards do not review ABCMR ROPs. Selection boards are allowed to review selected derogatory documents within the restricted folder of the OMPF depending on the board's need for such information to select Soldiers for promotion and/or leadership positions. 4. The applicant's nonrated statements cover 24 months of nonrated time resulting from the removal of two contested OERs. He contends MAJs must serve 24 months in a FA30 assignment to be competitive for promotion to LTC. The ORB serves the purpose of showing an officer's assignment history. He may validate the accuracy of his assignment history as shown on his ORB by visiting his human resource section or by contacting his branch manager. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016190 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170003639 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2