BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20170015495 APPLICANT REQUESTS: Correction of his record to show Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his dependent son. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) disability rating, dated 14 February 2012 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 in 2012, he was in the process of medically retiring from the U.S. Army. Unfortunately due to injuries sustained in OEF 10 he was being managed for pain, sleep, and cognitive function with medications. The medications clouded his judgment and he was confused with his out-processing. He made many mistakes in his retirement including the ability to transfer his Post 9/11 GI Bill. 3. A review of the applicant’s official records show the following: a. On 30 October 2007, the applicant enlisted in the Regular Army. b. On 9 March 2012, a Physical Evaluation Board (PEB) convened, and the PEB found the applicant physically unfit and recommended a combined rating of 30 percent and his disposition be permanent disability retirement. c. On 8 July 2012, the applicant was honorably discharged from active duty by reason of disability, permanent enhanced. d. The applicant’s records are void of any documents showing he applied to the Army G-1 for a waiver to transfer education benefits prior to being medically discharged from active duty. 4. The applicant provides his VA disability rating showing the PEB combined evaluation and listing multiple service connected disabilities. 5. On 28 January 2020, the U.S. Army Human Resources Command reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Education Incentives Branch opined that: a. On 4 March 2011, the applicant was enrolled in the medical disability process through the Integrated Disability Evaluation System (IDES). He did not have at least six years in service at this point, so he was ineligible for TEB. His basic active service date was adjusted to 16 March 2006 due to having 1 year, 7 months and 14 days of honorable service in the U.S. Navy (USN) from 2 November 1999 to 15 June 2001; his USN discharge was due to a "Medical Condition, Not a Disability." b. So, his sixth year in service was 15 March 2012. However, he was ineligible for TEB on this date also due to being enrolled in IDES and having an expiration term of service date of 29 October 2013 (less than four years). He would have needed to extend or reenlist to commit to the four-year TEB service obligation. Because he had six to less than 10 years of service and was in the IDES process, any TEB request on/after this date would require an exception to policy through his unit to the Army G-1 Enlisted Professional Development Branch to allow him to extend or reenlist to commit to the four-year TEB service obligation. The TEB website shows the applicant did not request TEB. c. A copy of the complete advisory opinion has been provided to the Board for their review and consideration 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 7. 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. 8. Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements) TEB and the Soldier in the IDES (MEB/PEB) Process: * a Soldier must request an ETP through their Career Counselor/Retention NCO and command leadership to extend or reenlist for the TEB 4-year service obligation * the ETP request must be sent to the Army G-1 Enlisted Professional Development Branch (Retention) for approval * the Soldier must have an approved ETP and extend or reenlist for the TEB four- year service obligation before the Soldier receives the PEB “unfit for duty” determination * upon medical disability separation/retirement, HRC will adjust the TEB service obligation from the four-year service obligation to the medical disability separation/retirement effective date BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record and length of service, disability processing proceedings and the reason for his separation. The Board considered the policy and Public Law related to transfer of benefits and the review and conclusions of the HRC advising official. The Board found that based on his length of service, he was not eligible for transfer of education benefits at the time of his entry into disability processing and the Board found no evidence that he requested an exception to policy for eligibility prior to his separation. Based on preponderance of evidence, the Board found that the denial of his requested transfer of education benefits was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? 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 3 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 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 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. 3. Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements) TEB and the Soldier in the IDES (MEB/PEB) Process: * a Soldier must request an ETP through their Career Counselor/Retention NCO and command leadership to extend or reenlist for the TEB 4-year service obligation * the ETP request must be sent to the Army G-1 Enlisted Professional Development Branch (Retention) for approval * the Soldier must have an approved ETP and extend or reenlist for the TEB four- year service obligation before the Soldier receives the PEB “unfit for duty” determination * upon medical disability separation/retirement, HRC will adjust the TEB service obligation from the four-year service obligation to the medical disability separation/retirement effective date //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015495 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1