BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20150018850 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: 11 July 2017 DOCKET NUMBER: AR20150018850 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: 11 July 2017 DOCKET NUMBER: AR20150018850 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 approval of an exception to policy to transfer his educational benefits to family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2.  The applicant states he attempted to transfer his educational benefits to his family members, but he was flagged for not meeting height and weight standards and, therefore, his request was denied. He adds that since he is medically retired, the flag no longer exists and he should be able to transfer those benefits. 3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1.  Having prior enlisted service, the applicant enlisted in the Regular Army on 25 September 2008. He served through multiple enlistments or extensions. 2.  On 28 May 2015, he retired due to permanent disability. 3.  His Enlisted Record Brief (ERB), dated 29 May 2015, shows a flag code of "KA" (adverse action for Army Body Composition Program) which was initiated on 28 October 2014. The entry for the flag expiration date is blank. 4.  During the processing of this case, an advisory opinion was obtained from the Chief, Army Education Incentives, U.S. Army Human Resources Command (HRC), on 1 December 2016, who recommends disapproval of the applicant's request. This official states: a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252 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 on or after 1 August 2009, have at least 90 days of qualifying Post-9/11 GI Bill service, have 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the additional service obligation, and transfer benefits to the dependents through the TEB website (http://milconnect.dmdc.mil). All benefits must be transferred before the service member separates or retires. b.  The Post-9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The option to transfer educational benefits to a dependent is considered an incentive, not a benefit. The transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for service nor a transition benefit. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. c.  If the applicant had requested TEB between 24 May 2010 and 8 October 2013 and had extended or reenlisted to obtain 4 years of eligibility from the date of the TEB request, he would have been approved for TEB. Since he reenlisted for 6 years on 7 October 2010, he was eligible to request TEB until his first negative action flag, dated 9 October 2013, providing he had 4 years of retainability from his TEB request date. d.  The applicant had a negative action flag in place from 9 October to 31 October 2013 and from 20 May to 1 August 2014. His final negative action flag was effective 28 October 2014 and it was not removed prior to his disability retirement on 28 May 2015. He had periods of eligibility to request TEB; however, he did not request TEB when eligible. He requested TEB on 26 May 2015. On 27 May 2015, the HRC GI Bill Team rejected his TEB request and sent him an email explaining his TEB request was rejected due to the negative action flag. 5.  On 12 December 2016, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. REFERENCES: 1.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. The law limits eligibility to transfer unused education benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009: a.  A member must be currently serving on active duty or as 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). b.  A member must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children. c.  A member may only transfer to eligible dependents. To be considered an eligible dependent, the spouse or child must be enrolled in Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible dependent status upon reaching age 21 or at marriage. Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d.  A member must also agree to serve the prescribed additional service obligation based on the time the member had in service on 1 August 2009. e.  A member must have no adverse action flag and have an honorable discharge to transfer the benefits. f.  A member should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense (DOD), and Department of Veterans Affairs (VA) initiated a public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. g.  A member must initially request to transfer benefits using the DOD TEB online database. The TEB online database was operational effective 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access. The respective dependent must then submit an application for VA educational benefits, using a VA Form 22-1990e (Application for Family Member to Use Transferred Benefits). h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation. If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 2.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible member is any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and: a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, 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, or c.  is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service. 3.  The policy 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 and document accordingly under Public Law 110-252, section 3316. 4.  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. DISCUSSION: 1.  DOD, the VA, and the Army conducted a public campaign plan 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 two criteria to qualify to transfer benefits to an eligible dependent: (a) be serving on active duty or as a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action flag) and (b) have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible. 2.  The evidence of record shows he was fully eligible to transfer his educational benefits under the TEB during the period 24 May 2010 through 8 October 2013 prior to his flagging action, but he did not do so. 3. He opines that since he is medically retired, the flag no longer exists and he should be able to transfer those benefits. Upon review, there is no provision in law or policy that allows a retiree who was permanently retired in 2015 to transfer unused educational benefits to his family members. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018850 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018850 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2