ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    24 April 2019

	DOCKET NUMBER:  AR20160016425


APPLICANT REQUESTS: an exception to policy to transfer educational benefits to his family member(s) under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* NGB Form 22 (Report of Separation and Record of Service)
* Order D014-09, dated 14 January 2015

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states at the time of his medical discharge, he did not know and he was not told he had to add his wife before he was medically discharged.

3.  Review of the applicant's records shows; 

	a.  He enlisted in the Iowa Army National Guard (IAARNG) on 19 September 2009.  

	b.  He served in Afghanistan from 28 May 2004 to 30 May 2005.  He was promoted to staff sergeant/E-6 in the ARNG on 11 December 2009.

	c.  On 14 January 2015, the U.S. Army Physical Disability Agency published Orders D14-09 placing him on the permanent disability retired list at a combined rating of 60%, effective 18 February 2015.  

	d.  His NGB Form 22 shows he completed 12 years, 4 months, and 29 days of total service for pay.

5.  An advisory opinion was received from the NGB on 5 February 2019 in the processing of this case.  An advisory official recommended approval of this request to transfer Post 9/11 GI Bill education benefits and stated: 

	a.  The applicant is a former member of the IAARNG.  He contends that he was not informed about the option to transfer his Post 9/11 GI Bill to his wife prior to his medical discharge.

	b.  Transfer of Post 9/11 GI Bill Benefits to dependents was established to promote retention.  Department of Defense (DOD) Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, identifies specific service obligations required for individuals that choose to use TES.  DOD Instruction 1341-13, dated 21 May 2013, paragraph 3(g)(2), (d) specifies that Soldiers "Discharge or release from active duty or the Selected Reserve for a physical or mental condition, not a disability that did not result from his or her willful misconduct, but did interfere with the performance of duty" are eligible to transfer benefits to their spouse.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) in the Soldier's record also shows he received an honorable discharge on 18 November 2015 with 12 years of service.

	c.  The Veteran Tracking Application records show that the applicant was entered into the Medical Evaluation Board (MEB) process on 18 November 2013 and that the MEB found his medical conditions to be service connected and therefore his case was transferred to the Physical Evaluation Board (PEB) on 19 March 2014, the PEB reviewed his case and came to the conclusion that he was unfit to continue military service and permanently disability retired him on 18 February 2015.

	d.  The IAARNG has concluded that Soldiers who are entered into the Integrated Disability Evaluation System (IDES) are not briefed on education benefits during the entry brief of the MEB process by the Patient Evaluation Board Liaison Officer (PEBLO).  PEBLOs are the main points of contact for Soldiers going thru the IDES process, they are their only source of communication between the MEB and the PEB.  The applicant's DA Form 5893 (Soldier Medical Evaluation Board/Physical Evaluation Board Counseling Checklist) is the checklist is provided to the Soldier prior to the case being forwarded to the PEB, it list all requirement needing to be completed, of which there are no educational requirements on the checklist.  The IAARNG has stated this is something which they need to address in their process moving forward.

	e.  The ARNG, DOD, and Department of Veterans Affairs initiated a massive 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 education benefits. Therefore, it is the belief of this office that the applicant should be able to transfer his benefits to his wife.  This opinion was coordinated with the Army National Guard Incentives office.  The IAARNG concurs with this recommendation.


4.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond. 

5.  The DOD, the Department of Veterans Affairs, 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 various criteria to qualify to transfer benefits to an eligible dependent.

6.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, § 3020 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, six years in Active Duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the Transfer of Education Benefits (TEB) website, http://milconnect.dmdc.mil.  All benefits must be transferred before the Service Member separates or retires

	a.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but there is no documentary evidence to confirm he did so.  The program was implemented in July 2009.  The applicant retired in February 2015.  

	b.  By law and military directives, a qualified Soldier approved to transfer entitlement to educational assistance may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.  The applicant did not transfer any Post 9/11 GI Bill benefits while serving as on active duty or in the Selected Reserve. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was warranted.  Based upon the NGB advisory concluding that Soldiers who are entered into the Integrated Disability Evaluation System (IDES) are not briefed on education benefits, the Board determined there was an injustice which warranted correcting the record.  For that reason, the Board recommended granting the requested relief of the applicant.
  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 the applicant filed an application and the Army approved the request to transfer his Post-9/11 GI Bill benefits to the applicant’s family member prior to retirement, provided all other program eligibility criteria are met.
	 
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.


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 benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve on or after 1 August 2009:

2.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states and eligible individual 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 retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service.

3.  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.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

4.  Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post 9/11 GI Bill TEB Four-Year Service Obligation for Approved TEB Requests Submitted after 1 August 2013, applied to Soldiers who would submit a Post 9/11 GI Bill REB on or after 1 August 2013, resulting in an approval to transfer. 

	a.  The purpose of this message was to emphasize that all Post 9/11 GI Bill TEB requests submitted and approved after 1 August 2013 would incur a 4-year service obligation from the TEB request date, regardless of years in service (except when precluded by either policy or statute from committing an additional 4 years (for example, temporary early retirement authority).  

	b. The 4-year obligation incurred by TEB requests approve don or after 1 August 2013 begins on the TEB request date and must be served in the same Army component.

	c.  A zero, one, two or three-year service obligation will no longer be available for those who request TEB on or after 1 August 2013.  All Soldiers who request TEB on or after 1 August 2013 will incur a 4-year service obligation regardless of time in service. 

ABCMR Record of Proceedings (cont)	 AR20160016425


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