IN THE CASE OF: BOARD DATE: 29 August 2018 DOCKET NUMBER: AR20160019359 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: 29 August 2018 DOCKET NUMBER: AR20160019359 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: a. deleting the Army Commendation Medal (ARCOM), Army Achievement Medal (AAM) (3rd Award) and Afghanistan Campaign Medal (ACM) from his DD Form 214 for the period ending 30 April 2008; b. adding the ARCOM (2nd Award), AAM (4th Award), ACM with one bronze service star, and Air Assault Badge to his DD Form 214 for the period ending 30 April 2008; and c. showing he submitted a timely application to transfer his Post 9/11 GI Bill benefits to his daughter prior to his retirement and showing his application was approved, 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: 29 August 2018 DOCKET NUMBER: AR20160019359 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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 2008, to show all awards he is entitled to include award of the Afghanistan Campaign Medal with one bronze service star. He further requests an exception to policy to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his daughter. 2. The applicant states he was informed since he retired within 90 days of implementation of the TEB policy, he may be eligible. 3. The applicant provides: * 3 DD Forms 214 * 4 Army Achievement Medal (AAM) certificates * 2 Army Commendation Medal (ARCOM) certificates * Certificate of Training * 2 memoranda * 2-pages of electronic mail CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was honorably discharged to accept a commission in the U.S. Army on 17 April 1986. On 18 April 1986, he accepted appointment as a Reserve Commissioned Officer in the Army of the United States. 3. Having 6 months and 3 days prior active service, the applicant entered active duty on 18 April 1986. He was honorably released from active duty on 1 November 1989. He completed 3 years, 6 months and 14 days net active service during this period. The DD Form 214 he was issued shows he was awarded or authorized the: * AAM (1st oak leaf cluster) * ARCOM * Overseas Service Ribbon * Army Service Ribbon * Parachutist Badge 4. The applicant was ordered to active duty in support of Operation Enduring Freedom (OEF) on 7 October 2006. Evidence shows he served in Afghanistan for the period 27 March 2007 through 21 March 2008. He was honorably released from active duty upon the completion of his required active service on 30 April 2008 after completing 1 year, 6 months and 24 days net active service during this period. The DD Form 214 he was issued shows he was awarded or authorized the: * Bronze Star Medal * ARCOM * AAM (3rd award) * Army Reserve Components Achievement Medal * National Defense Service Medal (2nd award) * Afghanistan Campaign Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon (2nd award) * Armed Forces Reserve Medal with M Device * North Atlantic Treaty Organization Medal * Combat Action Badge * Parachutist Badge 5. On 14 September 2006, he was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). 6. The applicant provides: a. An ARCOM certificate which indicates he was awarded an ARCOM on 17 October 1989 (which is listed on his DD Form 214 for the period ending 1 November 1989), and Permanent Orders Number 05-014-04, dated January 2005, which awarded him an ARCOM. b. A Certificate of Training dated 20 June 1990, which certified the applicant completed combat assault, rappelling, and rigging and sling loading phases of Air Assault School, thereby earning the honor to wear the Air Assault Badge. He did not provide a copy of the corresponding orders awarding him the Air Assault Badge. c. An AAM certificate which indicates he was awarded an AAM on 22 December 1988 and 20 August 1989 (which are presumed to be listed on his DD Form 214 for the period ending 1 November 1989), Permanent Orders Number 197-02, dated 16 July 1997, which shows he was awarded the AAM and an AAM certificate dated 15 February 1991 in which a permanent order number is obscured but obviously present. d. A memorandum from the Director of Human Resources, Headquarters, 88th Regional Support Command, Fort McCoy, WI dated 2 March 2009, which states the applicant’s request for reassignment to the Retired Reserve was approved effective 1 August 2009. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) states: a. The AAM is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. b. The ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. c. The basic eligibility criteria for award of the Air Assault Badge consists of satisfactory completion of an air assault training course according to the Training and Doctrine Command (TRADOC) standardized Air Assault Core Program of Instruction or the standard Air Assault Course while assigned or attached to the 101st Airborne Division (Air Assault) since 1 April 1974. The badge approval authority is a division or separate brigade commander or the commander of the 101st Airborne Division (Air Assault). d. The Afghanistan Campaign Medal is awarded to members who have served in direct support of OEF. The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land area. The period of eligibility is on or after 11 September 2001 to 31 December 2014, and Operation Freedom Sentinel from January 15, 2015 to a future date to be determined by the Secretary of Defense or the cessation of OEF. A bronze service star is authorized for wear with this medal for participation in each credited campaign. Approved designated Afghanistan campaigns are: * Liberation of Afghanistan (11 September 2001-30 November 2001) * Consolidation I (1 December 2001-30 September 2006) * Consolidation II (1 October 2006-30 November 2009) * Consolidation III (1 December 2009 – 30 June 2011) * Transition I (1 July 2011-date to be determined) 2. Army Regulation 635-5 (Separation Documents), then in effect, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form should be complete and accurate. 3. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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. 4. Public Law 110-252 limits the 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. a. A Soldier must be currently 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). b. A Soldier 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 to eligible children. c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member 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 Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier must initially request to transfer benefits on the DOD Transfer Education Benefits (TEB) online database. The TEB online database was operational 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, VA Form 22-1990e, to request to use the benefits. g. The Army, DOD, and VA 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 educational benefits. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant provided 4 AAM certificates; however, his DD Form 214 for the period ending 30 April 2008 only lists three awards of the AAM. It appears the AAM dated 15 February 1991 was not previously accounted for. Despite not being able to completely view the permanent order number, an order number is present; the evidence supports adding the award to his DD Form 214 for the period ending 30 April 2008. 2. An ARCOM is listed on his DD Form 214 for the period ending 1 November 1989. Permanent Orders Number 05-014-04, dated January 2005, awarded him another ARCOM. His DD Form 214 for the period ending 30 April 2008 only lists one award of the ARCOM. 3. The evidence shows he completed a qualifying period of service for entitlement to the Afghanistan Campaign Medal with one bronze service star. The bronze service star is not listed on his DD Form 214. 4. The applicant’s record is void of evidence showing he completed Air Assault training or that he was awarded the Air Assault Badge as a result of completing the school. Although the applicant provides a copy of a certificate which indicates that he successfully completed the program requirements of the Air Assault School, he did not provide a copy of corresponding orders awarding him the Air Assault Badge. 5. The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement, but he did not do so. The program was implemented in July 2009 and the applicant retired on 1 August 2009. a. The DOD, VA, and the Army conducted a public campaign plan that generated major 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. b. Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits. This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling. c. The applicant's retirement date was 1 August 2009. It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status, he would have done so. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160019359 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160019359 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2