ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20160019063


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 293 (Application for the Review of Discharge).

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 that he was never given the chance to transfer his education benefits.  He was medically boarded and never signed or afforded the opportunity for transfer of benefits for the Montgomery GI Bill and Post 9/11 education bill.  He is eligible for both.

3.  A review of the applicant’s service records shows:

	a.  Having had prior service in the Army National Guard (ARNG) and Regular Army (RA), the applicant enlisted in the RA on 28 April 2008.

	b.  He served in Iraq from 28 August 2009 to 23 June 2010.

	c.  He was honorably discharged from active duty on 8 November 2011 under the provisions of Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation), Chapter 4, disability with severance pay, combat related (enhanced).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 6 months, and 11 days of active service with 8 years and 27 days of prior active service and 3 years, 5 months, and 28 days of prior inactive service.

4.  An advisory opinion was received from the U.S. Army Human Resources Command (HRC) on 28 March 2019 in the processing of this case.  The Incentives Program Manager recommended disapproval of the applicant’s request to transfer Post-9/11 GI Bill education benefits.  The advisory official stated:

	a.  Public Law 110-552 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Furthermore, 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, 6 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 TEB website.  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 education 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.  The TEB incentive does not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible.  A Soldier acquired TEB eligibility as stated in paragraph 4a and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation.

	d.  The applicant was eligible to request TEB on 1 August 2009 based upon 6 years of prior-service in the Army and ARNG.  He reentered RA status on 28 April 2008, so he was eligible for TEB on 1 August 2009.

	e.  Instructions for Soldiers in the Integrated Disability Evaluation System (IDES) process have been available through the HRC website, Army Career Counselor policy messages, and Education Centers.

	f.  On 18 June 2010, the applicant was enrolled in the Army Weight Control Program (AWCP) and was flagged “KA.”  So, he became ineligible to request TEB while flagged.  He remained in the flagged status until his discharge on 8 November 2011.

	g.  On 5 January 2011, the applicant was enrolled in the medical disability process through IDES.  On 19 September 2011, the Physical Evaluation Board (PEB) convened, found him unfit for duty, and on 21 September 2011 formally counseled him on being found unfit for duty.  His medical disability orders were published on 12 October 2011 with an effective date of 8 November 2011.  Since he was flagged for the AWCP, he was ineligible for TEB after receiving the medical disability order dated 12 October 2011 and before the medical disability effective date of 8 November 2011.  Any TEB request he would have submitted at that time would have been rejected.

	h.  The TEB website reflects he did not resubmit a TEB request.

	i.  If the PEB had determined the applicant fit for duty, he would have been returned to duty.  Later if the applicant met Army standards and was removed from the AWCP, the “KA” flag would have been removed and he could have extended or reenlisted to meet the 4 year TEB service obligation and requested TEB.

	j.  Directive Type-Memorandum 18-006, Transferability of Unused Post 9/11 GI Bill Educational Benefits by Recipients of the Purple Heart, “does not apply since he is not a Purple Heart recipient on/after 11 September 2001 during an honorable period of service.

	k.  The Benefits for Administrative Services Tool shows he has used 25 months of the Post 9/11 GI Bill benefits at the 100% payable rate during 2015 – 2017 for a total of $85,281.04 with a last payment date of 21 February 2017.  Although TEB is unavailable to the applicant, his military service may make his dependents eligible for other types of assistance.  

5.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response on 3 April 2019.  He did not respond.

6.  By law, the eligibility to transfer unused benefits is limited to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.  A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer or educational benefits to his or her dependent(s) on or after 1 August 2009.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the advisory opinion’s finding that the applicant became ineligible to request TEB as a result of his flag, that he remained flagged until his discharge on 8 November 2011, and he failed to execute the transfer prior to being placed in a flagged status, the Board concluded that there was insufficient evidence to show an error or injustice which would warrant making the eligibility of the applicant for transferring his education benefits to his dependents.


BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION

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.
	 
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.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Public Law 110-552 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Furthermore, 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, 6 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 website.  All benefits must be transferred before the service member separates or retires.

ABCMR Record of Proceedings (cont)	 AR20160019063


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