Dear   
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 29 March 2021.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations, and policies.  In addition, the Board considered Headquarters, U.S. Marine Corps (HQMC) memorandums 7220 MPO of 21 September 2017 and 28 February 2020. 
 
You have requested to correct your record to reflect completion of service obligation to establish entitlement to transfer Post-9/11 GI Bill education benefits to your dependents on two separate occasions (BCNR Docket Numbers 2932-17 and 4242-18) which were denied by two separate Board panels.  
 
The Board received your most recent request on 10 March 2020.  In this request, you specifically requested: 
 
“Request that my service record be updated to reflect a completion of the service obligation to transfer my Post 9/11 GI Bill education benefits to my dependents My service record currently reflects 20 years and 1 month of active duty service; 22 years total service from the contract signature date.  I am requesting that the record of my service obligation with regard to the ability to transfer education benefits be modified as (a) complete and able to transfer the full amount of the benefits or (b) adjusted down by proportion commensurate to the 273-day difference from my official retirement date (31 January 2013 / Julian date 032) to the service obligation completion date (12 November 2013 / Julian date 305).” 
 
“My request to retire was approved by HQMC (M&RA) with the phrase "SNO had met all known service obligations."  This statement would indicate I would therefore be permitted to transfer my Post 9/11 GI Bill Education benefits. My application to do so in 2016 was approved twice and then subsequently denied claiming that I had in fact not completed my service obligation.  Had I been informed (and required to sign the Statement of Understanding), that a service obligation still existed, I would not have retired in January 2013 and would have delayed my retirement until after completing my service obligation.  The references I have included with this application document the existence of an error in my naval record as noted in the HQMC memorandum to the BCNR.  I was provided incorrect data from HQMC (M&RA) and made a decision to retire based on that information.  I am requesting the BCNR correct my service record which the BCNR has the authority to grant.” 
 
HQMC memorandum of 17 September 2017 stated, in part, that on 11 October 2012, you requested to voluntarily retire on 31 January 2013, which was approved on 9 November 2012 by CMC (MMOA).  CMC (MMOA) noted that you will have met all [k]nown service obligations.  They also stated that your Official Military Personnel File (OMPF) is void of a Post-9/11 educational benefits transferability commitment and Statement of Understanding (SOU).   
 
The memorandum further stated in part: 
 
On 19 October 2012, you completed Pre-Separation Counseling including counseling on the benefits under the Post-9/11 GI Bill; 
 
You were provided pre-separation or release from active-duty counseling on the benefits under the Post-9/11 GI Bill and the counseling was documented accordingly: 
 
That while the government provided multiple sources of information specific to the consequences of not completing the required TEB service obligation, absent an SOU, it is impossible to be 100 percent certain that, contrary to your claim, it was "specifically clear" that retiring even one day prior to the [TEB Obligation Date] would negate the ability to transfer any and all education benefits; and 
 
If your TEB-related remaining service obligation had been accurately recognized on your request to retire, it is likely you would have requested a retirement date subsequent to 12 November 2013, and that this information would have influenced MMOA/MMSR's decision regarding your request to retire on 31 January 2013. 
 
HQMC memorandum of 28 February 2020 (same office that issued the memorandum of 17 September 2017 above) stated, in part, that the BCNR does not have the authority to waive the service requirement required is in dispute.  It is a fact that neither statute nor Department of Defense policy (38 U.S.C 3319 and DoDI 1341.13) provide the Marine Corps with the authority to waive or modify TEB service obligation criteria, with limited exceptions identified in DoDI 1341.13.  However, sections (a) (1) and (a) (2) of Title 10 U.S.C. 1552 plainly state that the "[Secretary of the Navy] - acting through the [BCNR] - may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice."  HQMC concluded that the Marine Corps provided you incorrect and erroneous information that ultimately affected your decision to retire prior to your TEB-related service obligation date and that this indicates the existence of an error in your naval record that warrants the requested relief, which the BCNR has the authority to grant.  Further stating that if directed by the BCNR, CMC (MPO) has the capability to modify your current TEB service obligation date (i.e., 12 November 2013) to your separation date (i.e., 31 January 2013).  
 
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, to include your assertions and both HQMC memorandums.  The Board concluded the ability to transfer Post-9/11 GI Bill education benefits to eligible dependents is a recruiting and retention tool that became effective 1 August 2009 in accordance with Title 38 U.S.C. § 3319.  Pursuant to this law, members of the uniformed services are required to have served 6 years of active duty and or selected reserve service in the armed forces and enter into an agreement to serve at least four additional years of obligated service from the time of election approval.  A review of your record indicates you requested to transfer education benefits on 12 November 2009 and it was approved with an obligation end date of 12 November 2013.  Subsequently, you voluntarily transferred to the retired list effective 1 February 2013, prior to completing your service obligation.   
 
The Board deliberated over HQMC memorandums and your argument that your request to retire was approved by HQMC (M&RA) with the phrase “SNO had met all known service obligations" which you believe this statement would indicate you would therefore be permitted to transfer your Post 9/11 GI Bill education benefits.  The Board disagreed with this argument since your transfer of education benefits does not preclude you from voluntarily retiring and forfeiting such benefits to your dependents.  Additionally, absent an SOU, the Board believed the Marine Corps provided multiple sources of information specific to Post-9/11 GI Bill, which led you to requesting the transfer of such benefits to your dependents, and the Marine Corps also provided you with pre-separation or release from active-duty counseling on this benefit, at which time you could have requested a different retirement date to meet the required obligation to transfer the benefit.  Furthermore, as stated in your previous decision letters, the Board does not have the authority to waive service obligations associated with a Post 9/11 GI Bill transfer, nor can the Board legally backdate a TEB request prior to the program initiation date of 1 August 2009.  Even if the Board backdated your TEB request to 1 August 2009, you would have still been obligated to four years of additional service, which would have resulted in an obligation end date of 1 August 2013.  As you voluntarily retired on 31 January 2013, you would still fall short of the obligation end date.  Therefore, the Board determined they are unable to waive the 4-year additional service obligation mandated by law.   
   
Lastly, as indicated in your most recent request “Had I been informed (and required to sign the Statement of Understanding), that a service obligation still existed, I would not have retired in January 2013 and would have delayed my retirement until after completing my service obligation.”  The Board does have the authority to bring you back onto active duty to meet such required service obligations so that you could fulfill the additional service obligation mandated by law.  Such a requested would require you to complete and submit a new DD Form 149.   
    
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board, such as requesting reinstatement into the Marine Corps to fulfill service obligation to be eligible for Post 9/11 GI Bill transfer.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.   
 
Sincerely, 

5/3/2021
Deputy Director