IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150004657 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 he be allowed to transfer his Post-9/11 GI Bill educational benefits to his dependents under the Transfer of Education Benefits (TEB) program. 2. The applicant states – * he submitted his request to transfer his Post-9/11 GI Bill benefits on 1 December 2014 * on 11 December 2014, he received an email from Finance and Incentives Branch, Human Resources Command (HRC), indicating that his request was disapproved because he had an adverse action flag in his record * the flag was determined to be erroneous and was lifted by the 327th Quartermaster Battalion in Farrell, PA, with a retroactive date of 20 August 2013. * unfortunately this did not happen until after his retirement date, making it impossible for him to reapply to transfer his Post-9/11 GI Bill benefits * in accordance with (IAW) Policy Message 15-04 (Post-9/11 GI Bill Transfer Instructions), he had to wait until he was issued his retirement orders and DD Form 214 to submit to Finance and Incentives Branch, HRC, in order to be approved to transfer his benefits * this gave him a very narrow window of time to request the transfer, and he did not have the opportunity to resubmit after he was denied based on an erroneous flag code * he made every effort to transfer his benefits before being retired and to correct the erroneous flag, but was unable to fix the situation before his medical retirement. 3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a DD Form 214 worksheet, separation transfer orders, a TEB application, DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 14 pages of emails, and a Department of Defense (DOD) TEB request rejection list. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) in 2000 and entered active duty on 17 November 2002 in an Active Guard/Reserve (AGR) status. 2. The applicant requested to participate in the TEB prior to release from active duty and was notified that due to a Flag in his records he was not eligible to participate in the TEB. 3. The 17 December 2014 DA Form 268 indicates the original Flag was removed with an effective removal date of 20 August 2013. 4. U.S. Army Group Fort Detrick Army Element, Walter Reed National Military Medical Center Orders 267-0135, dated 24 September 2014, transferred the applicant to the Warrior Transition Company. The orders show – * scheduled date of separation: 16 December 2014 * placement on the Temporary Disability Retired List (TDRL) * effective date of retirement: 16 December 2014 * date placed on retirement list: 17 December 2014 * retired grade of rank: SGT * percentage of disability: 70 * component: USAR * disability retirement: 12 years, 7 months, 0 days * basic pay: 14 years, 9 months, 21 days * Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law: Yes * Disability resulted from a combat related injury as defined in 26 U.S. Code 104: Yes 5. The DD Form 214 Worksheet shows his service component as Army/USAR whereas the DD Form 214 shows his service component as Army/ARNGUS. Both forms show – * his rank and grade as sergeant, E-5 * entry onto active duty on 17 November 2002 * release from active duty on 16 December 2014 * 12 years and 1 month of active service this period * 6 months of prior active service * 2 years, 2 months, 21 days of prior inactive service * type of separation – retirement * Separation code – SEK * Reentry code – 4R * Narrative reason for separation – Disability, Temporary (Enhanced) 6. In similar cases the Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, has recommended approval of an applicant's request when an applicant left the military within 90 days of implementation of the program. They also provided the following regulatory citations and eligibility information: a. Public Law 110-252 established the legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Section 3020 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. b. DOD established its criteria for eligibility and transfer of unused educational benefits to eligible family member on/or about 22 June 2009. c. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. A Soldier must not be barred from reenlistment or flagged due to adverse personnel action. d. Eligible member must have completed a minimum of 6 years in the Armed Services, and agree to incur an active duty service obligation (ADSO) of an additional 4 years from the date of the request or have at least 10 years of service on the date of election and cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD) and must commit to serve for the maximum amount of time allowed by either RCP or MRD (includes Sanctuary 20-year retirement, title 10 U.S. Code, section 12686a) as of the date of request. e. Any TEB request submitted on or after 1 Aug 2013 incurs a 4-year ADSO from the TEB request date. Soldiers who request to transfer their education benefits on or after 1 August 2013 incur a 4-year ADSO (regardless of their total service on 1 Aug 2009 or if they are eligible for retirement). 7. Army Regulation 601–210 (Active and Reserve Components Enlistment Program) provides that an – * RE-4 applies to person separated from last period of service with a non-waivable disqualification. * RE–4R applies to a person who retired for length of service with 15 or more year’s active Federal service. 8. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on DD Form 214. It provides that the SPD SEK is for personnel released for a temporary disability (TDRL). . DISCUSSION AND CONCLUSIONS: 1. The applicant had over 12 years of active duty service when he applied for TEB and was placed on the TDRL. 2. The flag, that was the initial reason for denial of TEB entitlement, was removed effective 20 August 2013; however, it was not dated until the day after his retirement. Based solely on his period of active service he would then meet the basic eligibility criteria with the removal of the flag. 3. However, as of 1 August 2013, all personnel wishing to utilize the TEB are required to obligate to a 4-year ADSO. Because the applicant could not obligate to the ADSO due to being medical retired, he is precluded from participating in the TEB. 4. Evidence shows that the applicant's records contain administrative error which does not require action by the Board. Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. The Board determined that administrative error in the records of the individual should be corrected. Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned to show on his DD Form 214 his – * service component as Army/USAR * RE Code as ?4? ___________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. ABCMR Record of Proceedings (cont) AR20150004657 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004657 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1