ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

                  
                  BOARD DATE:  17 May 2019

                  DOCKET NUMBER:  AR20170012643

APPLICANT REQUESTS:  to transfer his Post-9/11 GI Bill (TEB)

APPLICANT’S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	DA Form 137-2 (Installation Clearing Papers)
*	Veterans Education Benefits
*	DD Form 2656 (Data for Payment of Retired Personnel)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10,          
U.S. Code, 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 is requesting his records be amended to show an allocation of education 
benefits to his spouse and dependent children
*	38 CFR, Chapter 1, Part 21, Subpart P, Section 21.9570 (I)(ii)(A) states a 
transfer is considered to have completed his or her service agreement as a result 
of discharge due to disability
*	at the time of his discharge, this would have made him eligible for the transfer of 
education benefits to one or more dependent
*	he was uninformed and unjustly provided with false information about his 
eligibility to transfer education benefits
*	he met with an education clearance counselor when clearing the installation and 
was not provided with guidance he could transfer benefits
*	he was informed on the contrary that he did not qualify due to length of service
*	no official documentation in his possession states he was informed he could or 
could not elect benefits rather a verbal confirmation from the education counselor 
was given
*	as the provider of his family and with his physical disability, he made sure to elect 
the benefits he could to ensure his dependents would be taken care of
*	he opted into the survivor benefit program and appealed his physical evaluation 
board initial decision to guarantee retirement and medical care for his 
dependents
*	he would have opted to transfer his education entitlement if he had been made 
aware of his ability to do so 
*	he made every effort to guarantee a safe and successful future for his 
dependents
*	he was misinformed and directed by the post education counselor regarding his 
eligibility for the TEB
*	he found out when speaking with a veterans affairs education counselor that he 
was informed of the error 

2.  The applicant was honorably retired from the Army on 8 July 2013 for a permanent 
disability.  He served 5 years, 9 months, and 26 days.  

3 	In the processing of this case, an advisory opinion was obtained on 
17 December 2018, from the Incentive Programs Manager, US Army Human Resources 
Command.  The advisory official recommended disapproval of the applicant's request 
and did not recommend administrative relief.  A copy of the complete advisory opinion 
has been provided to the Board for their review and consideration.

4.  The applicant was provided a copy of this advisory opinion on 4 January 2019                                          
to provide him an opportunity to comment and/or submit a rebuttal.  He did not respond. 

5.  See REFERENCES below for applicable regulations and policy for this case.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was warranted.  The preponderance of evidence shows that the applicant was entitled 
to transfer his education benefits under his medical retirement, but was never informed 
of his ability to do so.  The Board agreed that the applicant’s case is unusual as the 
applicant did not meet the standard 6 years of active service requirement with the ability 
to serve an additional four years in accordance with the Transfer of Education Benefits 
(TEB) guidelines published by DoD in June 2009, but that due to the nature of his 
medical retirement, and according to public law (38 CFR), the time in service 
requirement is waived for service members who are discharged for disability.  Indeed, 
the Board found this Purple Heart Awardee’s statement to be compelling and agreed 
that the applicant would have transferred his education benefits to his spouse and 
dependent children if he had been informed of his ability to do so.
?
BOARD VOTE:

Member 1	Member 2	Member 3
X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined that the evidence presented was 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 
his application to transfer his educational benefits to his spouse and children on 07 July 
2013 (or a date before his separation), that the application was approved by the Army, 
and that his active duty service obligation was waived since he was approved for a 
medical separation.


												 
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.

ADMINISTRATIVE NOTE(S):  N/A


REFERENCES:

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.  

2.  Public Law 110-252, as amended by Public Law 111-377, identified the qualifications 
to receive the Post-9/11 GI Bill, one of which was that the service member must have 
performed active service on or after 11 September 2001 in order to be eligible for the 
Post-9/11 GI Bill.  Public Law 110-252 established legal requirements on the 
transferability of unused benefits to those members of the Armed Forces who were 
serving on active duty or as a member of the Selected Reserve on or after 1 August 
2009.

3.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of 
unused education benefits to eligible family members.  The policy limits the entitlement 
to transfer education benefits to any member of the Armed Forces on or after 1 August 
2009, who, at the time of the approval of his or her 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 service in 
the 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 service or 20 qualifying years of Reserve service.

4.  DOD policy further states the Secretaries of the Military Departments will provide 
active duty participants individual pre-separation or release from active duty counseling 
on the benefits under the Post-9/11 GI Bill, and document accordingly and maintain 
records for individuals who receive supplemental educational assistance under Public 
Law 110-252, section 3316.

5.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that 
identified and established responsibilities, eligibility criteria, benefits, and detailed 
guidance on the administration of the program.

6.  38 CFR Chapter 1, part 21, Subpart P, Section 21l9570 (I)(ii)(A) states, the 
transferor is considered to have completed his or her service agreement as a result of 
being discharged for disability.  

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)		AR20170012643
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