BOARD DATE: 2 October 2020 DOCKET NUMBER: AR20200000865 APPLICANT REQUESTS: entitlement to transfer education benefits (TEB) to his daughter under the Post 9/11 G.I. Bill. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or discharge from Active Duty), dated 23 June 2011 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, while on active duty in the Army, he was not aware that he was eligible for the Post 9/11 GI Bill since he had already earned his Doctorate in 1999 prior to entering the Army in 2001. He was of the understanding that the education benefit was not applicable to him since he had achieved the highest level. He did not inquire further as to how he or his dependents could take advantage of this tremendous benefit. Recently, a student of his, a medically retired veteran from the University of Phoenix (his part-time employer), made him aware that he may be eligible and that his college- aged daughter could possibly benefit as well. He applied and recently received a certificate of eligibility. He was happy not for himself, but that he could possibly transfer this earned benefit to his college-aged daughter. Had he known, he would have transferred this earned benefit years ago while on active duty. Since he was not informed, he was not able to comply within the timeframe required. He states there is an error of the right action failing to take place, which is failure of his various Commands of not providing the correct information as it pertains to Transfer of Entitlement under Post 9/11 GI Bill. He reiterate his desire to transfer entitlements under Post 9/11 GI Bill to his college-aged daughter. 3. A review of the applicants’ official record shows on: a. 30 July 2001, Oath of Office appointed the applicant with a Reserve commission. b. 7 August 2001, (Orders A-06-004082), published by US Total Army Personnel Command, ordered the applicant to active duty in the grade of captain with a service obligation of 3 years. c. 31 October 2005, he was honorably released from active duty after 4 years, 1 month and 15 days. He transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). d. 14 December 2006, Orders C-12-638513, published by the U.S. Army Human Resources Command (HRC), released him from the Control Group, and assigned him to 63rd Regional Readiness Command. e. 11 February 2011, a flag for adverse action was initiated. f. 11 March 2011, an AR15-6 Investigation Findings, Recommendations, and Analysis was completed wherein the applicant was charged with violating Articles 92 and 107 of the UCMJ. He was flagged for suspicion of misconduct. g. 25 May 2011, he received a reprimand for misusing his government credit card and making false official statements. h. 23 June 2011, he was honorably released from active duty, after 1 year, 8 months and 22 days. He transferred to the 3274th US Army Hospital Augmentation. i. 15 July 2013, he opted to resign in lieu of involuntary separation. He would receive an under other than honorable conditions discharge from the USAR effective 14 days after signature. The letter would be filed in his Official Military Personnel File as a permanent enclosure. j. 18 July 2013 (Orders D-07-311842), published by HRC, wherein he was discharged effective 19 July 2013. k. 19 July 2013, his Chronological Statement of Retirement Points reflects the applicant had 10 years with a total of 3,193 total points of creditable service. 4. The applicant did not provide and his record was void of any documentation pertaining to TEB. 5. The applicant provides a DD Form 214 see 3i above. 6. In the processing of this case, an advisory opinion, dated 20 August 2020, was received from the Chief, Education Incentives Branch, HRC. The advisory official recommended 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, § 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 no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the Department of Defense’s Transfer of Education (TEB) website, http://milconnect.dmdc.mil. All benefits must be transferred before the Service Member separates or retires. a. In effect, the applicant received a Letter of Reprimand which prompted a negative action flag effective 9 May 2012. The negative action flag made him ineligible for TEB. b. He was discharged effective 19 July 2013 with an “Under Other Than Honorable Conditions” type of discharge. c. The office sympathized with the applicant and his dependents; however, the time to make himself aware of TEB eligibility criteria was before he made himself ineligible for TEB. d. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 7. The applicant was provided a copy of this advisory opinion on 20 August 2020 and given an opportunity to comment and/or submit a rebuttal. He did not respond. 8. See regulatory guidance under REFERENCES. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board concurred with the advisory official's conclusion that the applicant was not eligible for TEB due to the negative action flag on his record. The Board determined there is no error, injustice, or inequity in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. a. Transferability of Unused Benefits to Dependents. For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component Soldiers whose request to transfer benefits is approved will incur an additional service obligation in accordance with the below policy. Soldiers are expected to serve the additional service obligation. b. Eligibility. (1) Any Soldier of the Armed Forces who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier’s request to transfer entitlement to educational assistance does not have an adverse action flag, is eligible for the Post 9/11 GI Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000865 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1