ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20170005744 APPLICANT REQUESTS: In effect, an exception to policy to transfer his educational benefits to his spouse under the Transfer of Education 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) * MilConnect screenshot * Physical Evaluation Board packet 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 he wants to transfer his benefits to his spouse and was not permitted to because he was on a medical board when he got back from Iraq from bring in an explosively formed penetrator explosion and receiving post-traumatic stress disorder (PTSD) and traumatic brain injury. He believes it is unjust that he has 23 months of benefits which cannot be used because of his combat related conditions. He is not allowed to transfer his benefits to his wife, because he was required to reenlist for four more years. He could not reenlist because he was on the medical board. He attempted to go to a university, and failed due to his PTSD and other conditions. If he could transfer his post 9/11 benefits to his spouse it would benefit his family greatly. His wife is majoring in early childhood special education and loves going to school and would put the benefit to wonderful use. 3. The applicant provides: * MilConnect screenshot that shows his TEB status as request rejected as of 15 October 2013, by reason applicant has not committed to the required additional service time * Physical Evaluation Board packet that shows he was placed on temporary disability retired list (TDRL) on 6 August 2013 and removed from TDRL on 15 December 2015 and placed on PDRL (Permanent) 4. A review of the applicant’s service records shows the following: a. He enlisted in the Puerto Rico Army National Guard on 24 April 2007. b. He entered a period of active duty on 12 August 2012 in support of Operation Iraqi Freedom and was honorably retired due to temporary disability (enhanced) on 5 August 2013. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 11 months and 24 days of active service this period * he had years, 11 months and 28 days of prior active service c. Orders 190-0001, dated 9 July 2013 show he was placed on the retired list on 6 August 2013. d. Orders 241-509, dated 29 August 2013 show he was discharged from the Army National Guard on 5 August 2013. e. NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows on 5 August 2013 he was honorably discharged and had 6 years, 3 months, and 12 days of total service for retired pay. f. NGB Form 23 (Army National Guard Current Annual Statement) shows he completed a total of 6 years, 4 months, and 2 days of creditable service for retirement pay. 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. a. 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 educational benefits to a dependent is considered an incentive, not an entitlement. The transferability 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one- on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post-9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the VA using a VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least 1 month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation (if applicable). c. The Soldier must acknowledge and click on nine statements in the TEB website before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Board members noted that he retired in August 2013 but requested the transfer in October 2013. By law, the member has to be on active duty or in the Selected Reserve at the time of transfer. Based upon the documentary evidence provided and found within the military service record, the Board concluded there was no evidence or an error or injustice which would warrant making a change to the applicant’s TEB benefit. 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. 11/13/2019 X CHAIRPERSON Signed by: 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 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. a. 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 educational benefits to a dependent is considered an incentive, not an entitlement. The transferability 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one- on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post-9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the VA using a VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least 1 month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation (if applicable). c. The Soldier must acknowledge and click on nine statements in the TEB website before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. NOTHING FOLLOWS