BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016091 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016091 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. _____________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. BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016091 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 educational benefits to his dependents. 2. The applicant states, in effect, the transfer of educational benefits option did not exist until 1 August 2009 and he was unaware of the rules and regulations at the time of his discharge on 20 August 2009. 3. The applicant provides a VA [Veterans Administration] Form 21-4138 (Statement in Support of Claim), dated 26 August 2015 (summarized above). 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. An NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the Army National Guard (ARNG) of the United States and the South Carolina ARNG on 13 May 2000 and he was discharged on 30 January 2001 with an uncharacterized character of service based on defective enlistment agreement. 3. The applicant enlisted in the Regular Army (RA) on 26 March 2002 for a period of 6 years. He continued to serve on active duty with his last reenlistment occurring on 16 April 2009 for a period of 4 years. a. He served in Iraq in support of Operation Iraqi Freedom from 12 March 2003 through 29 April 2003 and from 10 August 2006 through 20 November 2006. b. He served in Afghanistan in support of Operation Enduring Freedom from 7 July 2005 through 26 October 2005 and from 15 June 2007 through 12 September 2008. c. He was promoted to staff sergeant/pay grade E-6 on 1 February 2007. 4. On 26 June 2009, the applicant accepted nonjudicial punishment (NJP) for wrongfully using marijuana, a schedule 1 controlled substance. His punishment, in pertinent part, was reduction to sergeant (E-5) and forfeiture of $1,197.00 per month for 2 months. 5. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) pertaining to the applicant was initiated by his company commander, effective 23 July 2009, based on the initiation of elimination action. 6. The applicant was reduced to private first class (E-3) effective 1 August 2009. 7. The applicant was discharged from the RA effective 20 August 2009. He had completed 7 years, 4 months, and 25 days of net active service this period. 8. On 26 July 2016, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge based on service-connected post-traumatic stress disorder. The board upgraded the characterization of his service to honorable with a change to the narrative reason to Secretarial Authority. The ADRB noted the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. A review of the applicant's military personnel records failed to reveal any evidence of a request to transfer educational benefits (TEB) to any of his family members. 10. In the processing of his 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 denial of the applicant's request to transfer his Post-9/11 GI Bill educational benefits to his dependents. b. He states the applicant is correct in that the TEB implementation date was 1 August 2009. However, Soldiers were eligible to apply for TEB beginning on 28 June 2009, with an effective date of 1 August 2009. He notes the applicant states he was unaware of the rules and regulations. c. The Department of the Army, Department of Defense, and Department of Veterans Affairs initiated a public campaign plan that generated communications through military, public, and social media venues. Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009. d. The advisory official states the applicant was ineligible to transfer his Post-9/11 GI Bill benefit since he had insufficient retainability and a negative Flagging action on 28 June 2009 that remained in effect through the applicant's separation date. Thus, any TEB request submitted by the applicant would have been rejected due to the Flag that was in effect. Additionally, his TEB request would have been rejected because he had an expiration term of service (ETS) in April 2013 and he would not have been allowed to extend (due to the Flag) to fulfill the required 4-year TEB service obligation. 11. On 31 August 2016, the applicant was provided a copy of the HRC advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 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 to unused educational benefits to one or more of the specified family members. 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. DISCUSSION: 1. The applicant contends, in effect, that his records should be corrected to show he elected to transfer his Post-9/11 GI Bill educational benefits to his dependents because he was not properly counseled on the TEB prior to his discharge. 2. The evidence of record shows the Post-9/11 GI Bill TEB was implemented on 1 August 2009. The applicant was serving on active duty in the RA at the time. a. Soldiers were eligible to apply for TEB beginning on 28 June 2009, with an effective date of 1 August 2009. b. The evidence of record shows the applicant received NJP on 26 June 2009 with the imposed punishment lasting 2 months. An adverse action Flag remained in effect through the date of his discharge (on 20 August 2009) and he was ineligible to transfer his benefits. In addition, he had insufficient remaining service to fulfill the required 4-year TEB service obligation and he was ineligible to extend or reenlist to meet the TEB service obligation due to the Flag that was in effect. 3. The evidence of record fails to support the applicant's request for correction of his records due to error, injustice, or as a matter of equity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016091 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016091 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2