ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20170004061 APPLICANT REQUESTS: an exception to policy to transfer educational benefits to his child 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Warrior Transition Battalion Orders (WTB) * Retirement Orders * Veterans Affairs Document * Physical Evaluation Board (PEB) 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 (ABCMR) 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 while he was deployed from May 2011 to May 2012, he began having major medical issues pertaining to his mental status. It started affecting his ability to function. He was eventually hospitalized for this from December 2012 to February 2013. On 5 March 2013, he was transferred to the Warrior Transition Battalion. On 25 March 2013, he was found unfit by the PEB to continue military service. When all of this was happening, he tried to transfer his benefits to his son, but he was informed that because he had already been found unfit that he couldn’t transfer his benefits since he didn’t have time left in the service. He was then hospitalized again from May-July 2013 and he received his ratings in August 2013. He was medically retired on 1 November 2013. He wasn’t eligible to transfer the benefit before he deployed to Afghanistan in May 2011 which is why it wasn’t done then. His problem was by the time he was coherent and able to think about transferring his benefit, he was already found unfit for duty. He feels his right to transfer his benefit was unfairly denied because of this fact. While there was a waiver for medically retiring Soldiers, he was told it didn’t apply to him because he didn’t have enough time in the military which is why this wasn’t done before his retirement date which is required. He is requesting an exception to be allowed to transfer his Post 9/11 benefits to his son, at this point because of this injustice. He provides: a. VA/DOD Joint Disability Evaluation Board Claim dated 28 January 2013 b. Permanent Change of Station (PCS) orders dated 5 March 2013, assigning the applicant to the Warrior Transition Company. c. Retirement orders dated 29 August 2013, showing the effective date of retirement as 30 October 2013. The reason is due to physical disability. d. PEB memo, dated 25 March 2013, finding the applicant unfit to continue military service due to Posttraumatic Stress Disorder. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 25 April 2006. He served in Afghanistan from 23 May 2011 to 21 May 2012. b. He was honorably retired due to disability (temporary) on 30 October 2013, and he was placed on the temporary disability retired list (TDRL) on 1 November 2013. His DD Form 214 shows he served 7 years, 6 months, and 6 days of active service. c. There is no indication in the service record and he provides none to show he transferred his Post 9/11 GI Bill benefits to his spouse or any dependent(s) before he retired. d. An entry into the Soldier Management System of the U.S. Army Human Resources Command (HRC) Integrated Web Services reads "9 June 2014, he called HRC regarding the transfer of his Educational benefits to his daughter." Details of his call or answer by HRC are unknown. 5. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of 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 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. 6. By law, a service member must be on active duty or in the Selected Reserve on or after 1 August 2009 at the time he or she requests transfer of Post-9/11 GI Bill education benefits. The applicant retired in October 2013. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Board members noted that the program began in 2009 and he retired in 2013. There is no evidence he requested a transfer of the Post 9/11 GIB Bill to his family members prior to his separation from military service. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded there is insufficient evidence of an error or injustice which would warrant making a change to the TEB benefits of the applicant. 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 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 110-252 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 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). 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 in service the Soldier had 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 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 which is the first 90 days of the program. g. A Soldier must have initially requested to transfer benefits on the Department of Defense (DOD) 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 electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. 3. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and on or after 1 August 2009, is eligible for the Post-9/11 GI Bill and, in pertinent part, is or becomes retirement eligible during the period 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 service or 20 qualifying years of Reserve service. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170004061 3 1