IN THE CASE OF: BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016942 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: 6 April 2017 DOCKET NUMBER: AR20150016942 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 by showing he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family member(s), 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: 6 April 2017 DOCKET NUMBER: AR20150016942 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 an exception to policy to transfer education benefits to his family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in effect, he believes the record is error because he was given false information. His benefits transfer was never submitted by the benefits counselor, who was fired a few months ago due to lying about his credentials. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Guam Army National Guard (GUARNG) on 24 October 2006 and held military occupational specialty 11B (Infantryman). 2. He entered active duty on 2 October 2012 and subsequently deployed to Afghanistan. A behavioral health examiner diagnosed him to suffer from post-traumatic stress disorder (PTSD) related to exposure to combat stressors. 3. On 21 November 2013, a physical evaluation board (PEB) convened and found his condition of PTSD unfitting. The PEB assigned him a 50-pecent disability rating and recommended his placement on the temporary disability retired list (TDRL). 4. He was honorably retired on 25 February 2014 and placed on the retired list in his retired rank/grade of specialist/E-4 on 26 February 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he competed 1 year, 4 months, and 24 days of active service. 5. He was also honorably discharged from the ARNG on 25 February 2014. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 7 years, 4 months, and 2 days of total service for pay. 6. On 15 July 2015, a TDRL PEB convened and found his condition remained unfitting. The TDRL PEB rated his condition at 50 percent and recommended permanent retirement. 7. On 22 July 2015, the U.S. Army Physical Disability Agency published Orders D203-67 removing him from the TDRL and permanently retiring him effective 22 July 2015 with a 50-percent disability rating. 8. The NGB reviewed his request for TEB and rendered an advisory opinion on 6 October 2016. An NGB official recommended approval and stated: a. The applicant enlisted into the GUARNG on 24 October 2006 for 3 years and later extended his enlistment for 6 years on 22 October 2008 with an Expiration Term of Service (ETS) of 23 November 2015. On 25 February 2014, he was medically retired and placed on the TDRL. After a follow up review of the applicant’s PEB he was removed from the TDRL and permanently retired on 22 July 2015. b. During the applicant's service from 24 October 2006 through 25 February 2014, he acquired 7 years, 4 months, and 2 days of service. According to Department of Defense Instruction (DODI) Number 1341.13, Subject: Post-9/11 GI Bill, 31 May 2013, enclosure three, 3.a(1), he failed to meet the eligibility requirements to transfer his education benefits to his dependents. He needed at least 6 years of military service (active duty or Selected Reserve) on the date of his transfer approval, and needed to agree to serve an additional 4 years of military service from the date of his election. According to 3(g)(3) of the aforementioned DODI, "The transferor is also considered to have completed his or her service agreement as a result of being discharged for a disability or a reduction in force or force shaping." c. Upon reaching 6 years of service, the applicant would have met the requirements to transfer his education benefits (6 years of service on 25 February 2012). Once approved, he would have been required to serve an additional 4 years, but he was not able to complete the service obligation due to the fact that he was medically retired for a disability. Additionally, according to the applicant, the benefits counsellor assisting him in this request provided false information and did not submit his request. d. The NGB official recommends approval, stating it is fair and just to allow the applicant to transfer education benefits to his dependents based on the fact he had over 6 years of military service but was not able to request a transfer. Upon approval, he would have had the additional service obligation waived due to his medical retirement. This advisory opinion was coordinated with the National Guard Bureau Incentives Branch. The GUARNG did not provide a comment with this recommendation. 9. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit comments. He did not respond. REFERENCES: 1. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252, 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. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service. A Soldier must currently 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. 2. The Law further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service, individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. 3. DODI Number 1341.13 establishes policy, assigns responsibilities, and prescribes procedures for implementing DOD authorities and responsibilities for chapter 33 of Title 38, U.S. Code, (also known and hereafter referred to as "the Post-9/11 GI Bill). It states in paragraph 3, subject to the provisions of this enclosure, the Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. Any Service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she meets one of these conditions: a. Has at least 6 years of military service (active duty or Selected Reserve), on the date of approval and agrees to serve 4 additional years in the Military Services, from the date of election. b. Has at least 10 years of military services (active duty or Selected Reserve), on the date of approval, is precluded by either standard policy (Service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute. c. Is or becomes retirement eligible during the period from 1 August 2009, through 31 July 2012, and agrees to serve the additional period, if any, specified in subparagraphs 3.a.(3)(a) through 3.a. (3)(d) of this enclosure. A Service member is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed pursuant to section 12732 of Reference (c). This subparagraph will no longer be in effect on 1 August 2013, and on or after that date all members must comply with subparagraphs 3.a.(1) or 3.a.(2) of this enclosure to be eligible for transfer of unused education benefits to family members. DISCUSSION: 1. The applicant served in the ARNG from 24 October 2006 to 25 February 2014. He became eligible to transfer his Post 9/11 benefits under the TEB upon completing 6 years of total service on 23 October 2012. There is no evidence he submitted a request to transfer the benefit at the time. Had he done so, he would have incurred 4 years of service from the date of approval. At this time he was not in the disability system. 2. He later entered the disability system. The informal PEB found him unfit on 21 November 2013. It was then that he was no longer able to complete the additional 4 year service obligation. 3. DOD, the VA, and the Army conducted public campaigns that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet several criteria to qualify to transfer benefits to an eligible family member. 4. The applicant states he attempted to transfer his Post-9/11 GI Bill education benefits in a timely manner. Had he fully understood this program and applied for the transfer immediately upon becoming eligible (at the 6-year mark), it is likely his request would have been approved, provided he agreed to serve 4 additional years. His disability retirement would have prevented him from completing the 4 additional years, but his separation for disability would have allowed him to use the incentive without completing the service obligation. The NGB advisory official recommends granting relief in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016942 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016942 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2