. BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000623 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 BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000623 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his 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. BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000623 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, in effect, an exception to policy to transfer his educational benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he was never informed his educational benefits could be transferred to his children. 3. The applicant provides no additional documentary evidence. CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the U.S. Army Reserve (USAR) and the Regular Army, the applicant reenlisted in the USAR on 22 August 2003. He served as a drilling Troop Program Unit (TPU) Soldier, and held military occupational specialty 92A (Automated Logistical Specialist). 2. On 9 October 2014, a physical evaluation board (PEB) determined the applicant was unfit for continued military service due to physical disability. The PEB recommended a combined disability rating of 20 percent, and separation with severance pay. a. On 3 November 2014, the applicant indicated he did not concur with the PEB's findings, and requested a formal hearing. He also requested a Department of Veterans Affairs reconsideration of his disability ratings and elected to transfer to the Retired Reserve in lieu of separation with severance pay. b. On 12 January 2015, the applicant withdrew his demand for a formal hearing, and indicated he concurred with the PEB's findings. He also affirmed he did not intent to submit a VA reconsideration request. 3. Memorandum, dated 26 February 2015, Subject: Transfer to the Retired Reserve (15-Year Letter) RE: [applicant], issued by the U.S. Army Physical Disability Agency (USAPDA) and addressed to the 88th Regional Support Command (RSC), stated the applicant was physically unfit for continued military service and was to be transferred to the Retired Reserve. The memorandum further directed the 88th RSC to publish orders transferring the applicant to the Retired Reserve, and stated the orders should have an effective date that is no later than 90 days from the memorandum's date. 4. Memorandum, dated 11 April 2016, Subject: Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter), issued by the U.S. Army Human Resources Command (HRC), affirmed the applicant's eligibility for retired pay at age 60. 5. The applicant's official military personnel file does not contain orders showing his transfer to the Retired Reserve. 6. On 11 October 2016, an official from HRC provided an advisory opinion. a. The official recommended approval of the applicant's request. (1) On 26 February 2015, the USAPDA published a memorandum directing the applicant's transfer to the Retired Reserve due to disability. (2) The applicant elected TEB on 22 November 2015, but HRC rejected his request because of insufficient retainability, based on his expiration term of service (ETS) date (13 November 2015). (3) The 88th RSC was supposed to have published orders with an effective date no later than 90 days from the date of USAPDA's memorandum. The 88th RSC did not publish orders until 1 May 2016 (more than 1 year later), and the effective date of transfer to the Retired Reserve was also 1 May 2016. b. DA policy currently requires Soldiers with 10 or more years of service, and who are pending a PEB fitness determination, to request TEB after receiving a medical disability order, but before the effective date of the order. (1) The applicant's medical disability order, from the 88th RSC, was published on the same date as the effective date of transfer. (2) It is reasonable to presume, had he been given more than one day to do so, the applicant would have again requested TEB. 7. On 17 October 2016, the Case Management Division, Army Review Boards Agency, provided the applicant a copy of the advisory opinion for review and comment. The applicant did not provide a response. REFERENCES: 1. Public Law 110-252 establishes the legal requirements on the transferability of unused Post 9/11 GI Bill benefits; however, this law also limits the transfer to those members who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Public Law 110-252, as amended by Public Law 111-377, identifies the qualification to receive the Post-9/11 GI Bill, one of which is that the service member must have performed duties on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 establishes legal requirements on the transferability of 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. 2. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states eligible individuals include 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 and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 4. Soldiers with 10 years or more of qualifying service who are in the Integrated Disability Evaluation (IDES) process are not permitted by U.S. Army retention policy to extend or reenlist for the additional four year service obligation. However, no exception to policy (ETP) is required to be approved for Soldiers in this category. They are to submit a request for transfer of benefits once the medical separation order has been provided, but before the effective date shown on the medical separation order. Requests for transfer are submitted to HRC along with a copy of the medical separation order. Upon approval, HRC adjusts the TEB service obligation to meet the date of medical separation. DISCUSSION: 1. The evidence of record indicates the applicant was eligible for TEB. The HRC advisory affirms the applicant requested TEB, but his request was denied because he did not have sufficient remaining service. This denial was based on his ETS, however, and, apparently, the fact he had been found by a PEB to be unfit for continued military service was not considered. 2. The USAPDA directed the 88th RSC to publish orders transferring the applicant to the Retired Reserve, and to show an effective date that was no later than 90 days from the date of the USAPDA's memorandum. The 88th RSC did not publish orders until more than a year after the USAPDA's memorandum, and then made his transfer effective the same date as the order. Army policy requires Soldiers who are in the IDES process to submit a request TEB on receipt of medical separation orders, but before the effective date shown on the medical separation order. Because the date of the order was the same as the effective date of transfer to the Retired Reserve, it appears he did not have a reasonable opportunity to request TEB. 3. HRC recommends granting the applicant's request. Additionally, it is within the Board's purview to grant such requests 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) AR20160000623 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000623 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2