ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20170016651


APPLICANT REQUESTS: 

*	correction of his record to show Post 9/11 GI Bill Transfer of Education Benefits 
(TEB) to his dependent
*	a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Enlisted Record Brief (ERB), dated 31 July 2013
*	Orders Number 051-1086, dated 20 February 2014
*	Army National Guard (ARNG) retirement points history statement, dated 
25 February 2014
*	DA Form 5016 (Chronological Statement of Retirement Points), dated 
23 February 2019

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 retired on or about 17 November 2013 under honorable 
conditions after serving in the United States Marine Corps (USMC), USMC Reserves, 
United States Coast Guard (USCG) and Pennsylvania Army National Guard 
(PAARNG).  At the time of his retirement he was not afforded any type of exit 
counseling of any kind nor any information about transferring his educational benefits to 
his family while only on military status.  He only found out about it when he called the 
Veterans Affairs (VA) to transfer his benefits in September 2017.  He asked his local 
federal representative for assistance and as of the date of his application, he received a 
letter from the Honorable Senator T-'s office through the National Guard Bureau (NGB) 
stating they could not assist in the matter.  This was an error on the PAARNG.  He is 
requesting the remainder of his educational benefits be transferred to his spouse.
3.  A review of the applicant’s service records show the following on:

*	26 April 2001 – having had prior enlisted service in the USMC and the USCG, 
the applicant enlisted in the PAARNG and served through various assignments
*	17 January – 20 July 2009 – the applicant deployed in support of Operation Iraqi 
Freedom
*	21 September 2009 – the applicant was honorably released from active duty and 
was transferred to his ARNG unit, DD Form 214 (Certificate of Release or 
Discharge from Active Duty) shows he was awarded multiple awards and 
decorations but most significant was the Purple Heart as it applies to this case
*	19 November 2013 – the applicant was honorably transferred to the U.S. Army 
Control Group (Retired), NGB Form 22 (Report of Separation and Record of 
Service) shows he completed:

*	7 years, 1 month, and 5 days of net service for this period of service
*	10 years, 3 months, and 9 days of prior Reserve component service
*	9 years, 6 months, and 16 days of prior active service


4.  The applicant provides:

*	ERB providing a brief of the applicant’s military service
*	Orders Number 051-1086, issued by the Adjutant General, discharged the 
applicant from the PAARNG and transferred him to the Retired Reserve
*	ARNG retirement points history showing the applicant completed 22 years, 11 
months, and 21 days of creditable service for retired pay
*	DA Form 5016 showing the applicant was placed in the Retired Reserve effective 
18 November 2013

5.  On 14 June 2019, the NGB reviewed the applicant's records and rendered an 
advisory opinion in his case.  After a thorough review, the Chief, Special Actions Branch 
opined that:

	a.  Title 38 USC, chapter 33 states in part that once a Soldier separates from 
service, they are not eligible to transfer benefits, because once separated they are not 
able to complete the four-year service obligation required for TEB approval.  The 
applicant voluntarily retired from the ARNG on 17 November 2013.  Upon a search of 
his records, there was no evidence to show that he requested transfer before his 
retirement.

	b.  Upon a further search of the applicant’s records, it was discovered he had been 
awarded a Purple Heart.  The Colmery Act changed the requirements for TEB
for Purple Heart recipients.  Those recipients are eligible for TEB at any time while in
service, and are not required to complete a service obligation.  Although those rules did
not come into effect until 31 August 2017, the ARNG believes it is in the best interest of
the applicant and the service to grant him relief, in recognition of his sacrifice
demonstrated by his Purple Heart award.  A copy of the complete advisory opinion has 
been provided to the Board for their review and consideration

6.  On 2 July 2019, the applicant responded via email to the Case Management Division 
analyst providing his interpretation of the letter he received in regards to his benefits.
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.  
8.  Title 38 USC, section 3311(b) as amended by the Colmery Veterans Educational 
Assistance Act of 2017, states an individual who after 11 September 2001 who serves 
on active duty in the Armed Forces and is a recipient of the Purple Heart and honorably 
discharged would be entitled to Post 9/11 GI Bill benefits at the 100% benefit level up to 
36 months.
9.  Army Regulation (AR) 15-185 (ABCMR) states an applicant is not entitled to a 
hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or 
by the Director of the ABCMR.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and an advisory opinion.  The Board considered the applicant’s 
statement, his award of the Purple Heart, recent changes to the law regarding transfer 
of education benefits and the recommendation of the advising official.  The Board 
concurred with the advising official and determined, by preponderance of evidence, that 
the applicant should be entitled to transfer his remaining Post-9/11 GI Bill benefits to his 
dependent spouse.  

2.  After reviewing the application and all supporting documents, the Board found that 
relief was warranted.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

: X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 to show:
-	The applicant submitted a request to transfer his Post 9/11 GI Bill benefits to 
his spouse prior to his retirement, and;
-	His request was accepted and processed by the appropriate agency, making 
his spouse eligible to use his education benefits.  


	  
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):

Not Applicable

?
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 must also agree to serve the prescribed Active Duty Service Obligation 
based on the time in service the Soldier had on 1 August 2009.  

3.  Title 38 USC, section 3311(b) as amended by the Colmery Veterans Educational 
Assistance Act of 2017, states an individual who after 11 September 2001 who serves 
on active duty in the Armed Forces and is a recipient of the Purple Heart and honorably 
discharged would be entitled to Post 9/11 GI Bill benefits at the 100% benefit level up to 
36 months.
4.  AR 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 may, in 
its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it 
states in paragraph 2-11 that applicants do not have a right to a hearing before the 
ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice 
requires.

ABCMR Record of Proceedings (cont)	 AR20170016651
	
2

1