IN THE CASE OF: BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150011499 BOARD VOTE: ____X_____ ___X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150011499 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he filed his Transfer of Education Benefits application; the Deputy Chief of Staff, G-1, granted a waiver of the suspension of favorable personnel actions to allow for the processing of the application; and the Department of the Army approved his request to transfer Post-9/11 GI Bill benefits to his authorized family members prior to his retirement, provided all other program eligibility criteria are met. _____________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: 22 November 2016 DOCKET NUMBER: AR20150011499 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 correction of his records to show he elected to transfer his Post-9/11 GI Bill education benefits to his dependents. 2. The applicant states, in effect, the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill was implemented in August 2009. He attempted to transfer his education benefits to his dependents while he was on active duty, but he was told that he could not do so. He states he was not briefed on the program when he was processed for transfer to the Temporary Disability Retired List (TDRL). He adds that he wants to transfer his education benefits to his son and there must be some regulatory provision to grant a waiver for his request. 3. The applicant provides no additional documentary evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army (RA) on 4 September 1992. He was awarded military occupational specialty 91B (Wheeled Vehicle Mechanic). 3. Through a series of reenlistments, he continued to serve on active duty in the RA through 24 June 2010. He attained the rank of sergeant/pay grade E-5 and he served overseas in: * Haiti from 24 September to 2 December 1994 * Bosnia from 13 September to 13 December 1999 * Iraq from – * 17 October 2003 to 6 February 2004 * 9 November 2004 to 22 June 2005 * 4 June 2007 to 18 May 2008 4. Two DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports (NCOERs)), covering the period 1 October 2007 through 24 January 2009, show the applicant received "Needs Improvement (Some)" ratings for "Physical Fitness and Military Bearing." They also show, in pertinent part, that he passed the Army Physical Fitness Test (APFT) and failed to meet the Army height and weight standards. 5. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows an informal PEB convened on 22 March 2010 at Fort Lewis, WA. a. It shows the following conditions were determined to be unfitting: * post-traumatic stress disorder (PTSD), 50 percent; battle injury and occurred following three tours in combat theater (some improvement with medication, but commander's statement indicates that he is unable to perform some assigned tasks) * foot injuries, other referred to as right foot pain due to Freiberg infarction, 10 percent; not a battle injury and did not occur in a combat theater b. The PEB found the applicant physically unfit, recommended a combined rating of 60 percent, and that he be placed on the TDRL with reexamination during December 2010. c. The PEB proceedings were approved on 26 March 2010. 6. Joint Base Garrison, Joint Base Lewis-McChord, WA, Orders 114-0016, dated 24 April 2010, released the applicant from duty because of physical disability on 24 June 2010 and placed him on the TDRL effective 25 June 2010. 7. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 4 September 1992 and he was honorably retired on 24 June 2010 based on disability (temporary). He completed 17 years, 9 months, and 21 days of net active service this period. 8. There is no evidence that the applicant completed a request to transfer educational benefits to any of his family members before leaving military service. 9. There is no evidence that the applicant's family members made a previous claim to the Department of Veterans Affairs (VA) for educational benefits. 10. In the processing of this case, an advisory opinion was obtained from the Chief, Army Education Incentives Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY. a. The advisory official recommends disapproval of the applicant's request to transfer his Post-9/11 GI Bill educational benefits to his dependents. b. The advisory official notes the applicant should not be granted relief based on the fact that he failed to meet height and weight standards in accordance with (IAW) Army Regulation (AR) 600-9 (The Army Body Composition Program (ABCP)) and he received: * Suspension of Favorable Personnel Actions (Flag) for the ABCP (verified per the Soldier Management System) * two NCOERs covering the period 1 October 2007 to 24 January 2009 showing he failed to meet height and weight standards (there were no subsequent NCOERs on file) c. The advisory official states the flag occurred prior to 1 August 2009, the flag was not lifted prior to the applicant's retirement date (24 June 2010), and any TEB request he submitted during that timeframe would have been rejected. The advisory official adds, as of 24 June 2010 (the applicant's last day on active duty), he did not meet Department of the Army requirements for TEB approval. 11. On 9 September 2016, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) prescribes policies, operating rules, and steps governing the suspension of favorable personnel actions, hereafter referred to as "flag." a. Chapter 2 (Policy and Management of Flags), in pertinent part, shows in: (1) paragraph 2-1 (General policy), the purpose of a flag is to prevent and/or preclude execution of favorable actions to a Soldier who may be in an unfavorable status (not in good standing); and (2) paragraph 2-3 (Circumstances requiring a transferrable Flag), subparagraph c, "Noncompliance with Army Body Composition Program" (Flag code K), the effective date of the flag is the date that the Soldier was found to be in noncompliance with AR 600-9. The use of certain medication to treat an underlying medical disorder or the inability to perform all aerobic events may contribute to weight gain, but are not considered sufficient justification for noncompliance with AR 600-9 and the Soldier will be flagged. Soldiers will not be exempt because of chronic medical conditions unless an exception to enrollment in the ABCP is granted by the Deputy Chief of Staff, G-1. b. Chapter 3 (Prohibitions and Retention of Flagged Personnel), in pertinent part, shows that enlisted Soldiers who are flagged may submit retirement applications to be considered on a case-by-case basis by the retirement approval authority. 2. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement of unused educational benefits to one or more of the specified family members through the TEB website (http://milconnect.dmdc.mil). a. An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, does not have an adverse action flag and has completed at least: (1) 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; (2) 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years, due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD), must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request regardless of the number of months transferred; or (3) the years of service as determined in Army regulations and established by the Secretary of the Army. b. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows: (1) to the individual's spouse; (2) to one or more of the individual's children; or (3) to a combination of the individuals identified above. c. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. 3. The Diagnostic and Statistical Manual of Mental Disorders (DSM) fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning (emphasis added); and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 4. The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA. DISCUSSION: 1. The evidence of record shows the applicant met the eligibility criteria to transfer his education benefits under the Post-9/11 GI Bill transferability program prior to being transferred to the TDRL effective 25 June 2010. a. He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children. He had more than 17 years of service upon his retirement. b. He was serving as a member of the RA on 1 August 2009 and his last day of active duty service was 24 June 2010. However, he was flagged for non-compliance with the ABCP during that period and any TEB request he submitted during that timeframe would have been rejected. c. In March 2010, a PEB found the applicant physically unfit with a combined rating of 60 percent and placed him on the TDRL. It shows, in pertinent part, the applicant was diagnosed with PTSD and his condition improved with medication. d. The governing Army regulation allows for an exemption to enrollment in the ABCP because of chronic medical conditions, if the exemption is granted by the Deputy Chief of Staff, G-1. e. Except for the flag for the ABCP, the applicant was eligible to transfer his educational benefits to his authorized dependents enrolled in the Defense Eligibility Enrollment Reporting System. 2. Notwithstanding the advisory opinion, the regulation does allow an exception to policy concerning noncompliance with the Army height and weight standards due to a serious medical condition. The applicant served in five hazardous duty zones to include three deployments to Iraq. He was diagnosed and treated for combat-incurred PTSD. As PTSD is a compounding illness that affects the psychological and physical wellbeing (functioning) of a person, the Board may consider granting an exception to policy for his noncompliance with the Army height and weight standards, thus allowing the applicant to transfer educational benefits to his authorized dependents. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011499 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011499 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2