IN THE CASE OF: BOARD DATE: 20 March 2020 DOCKET NUMBER: AR20180010428 APPLICANT REQUESTS: Correction of his record to show Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his dependent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 3 January 2001 * Orders Number 260-0003, dated 17 September 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 December 2009 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 18 September 2012 * Orders Number D269-06, dated 25 September 2012 * Memorandum, Subject: Removal from Temporary Disability Retired List (TDRL), dated 25 September 2012 * U.S. Army Human Resources Command (HRC) letter, dated 19 June 2018 * Honorable Mr. M- letter to the applicant, dated 21 June 2018 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 it was not his choice to be medically retired due to injuries received overseas in support of Operation Iraqi Freedom. He was involuntarily medically retired from the Army and feels his daughter should be eligible to receive his Post 9/11 GI Bill benefit which he elected in September 2009 but was unaware it was rejected until they were going to use it for her college in June 2018. 3. A review of the applicant’s official records show the following: a. On 4 January 2001, having had prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army and served continuously until his PEB. b. On 8 September 2009, a PEB convened and found the applicant physically unfit and recommended a combined rating of 70 percent, and his disposition be placement on the TDRL with re-examination in April 2011. c. On 18 September 2012, a PEB reconvened and found the applicant physically unfit and recommended a combined rating of 40 percent, and his disposition be permanent disability retirement. d. On 25 September 2012, Orders Number D269-06, issued by the U.S. Army Physical Disability Agency (USAPDA), removed the applicant from the TDRL and permanently retired him. 4. The applicant provides: a. Orders Number 260-0003, issued by Headquarters, 1st Infantry Division and Fort Riley, KS, placed the applicant on the TDRL. b. DD Form 214 showing the applicant was honorably retired by reason of temporary disability. c. Memorandum, Subject: Removal from TDRL Notification wherein the Chief, Operations Division, USAPDA informed the applicant he was being removed from the TDRL. d. HRC letter to the Honorable Mr. M- that states in pertinent part, Soldiers may incur various TEB service obligations based upon Public Law 110-252 (Title 38 USC, section 3319), and Department of Defense (DOD) and Department of the Army (DA) policies for the Post 9/11 GI Bill derived from that public law. Specifically, Title 38 USC, section 3319(b)(2) allows for the DOD and the Services to designate TEB service obligations less than 4 years pursuant to regulations. As such, DOD Instructions (DODI) 1341.13 (Post 9/11 GI Bill), enclosure 3, paragraph 3a(3) and DA policy memorandum (paragraph 17a(4)), authorized the Army to assign TEB service obligations of 0 (0-year), 1 (1-year), 2 (2-year) or 3 (3-year) years for Soldiers with 17 or more years of service (as of 1 August 2009) for TEB requests submitted before 1 August 2013. The TEB website indicates the applicant did submit a request to transfer benefits on 9 September 2009; however, his request was rejected because his records (at the time) indicated he was ineligible for the 0, 1, 2 and 3 year service obligation consideration. There was no documentation in his file indicating he was being medically separated. e. Honorable Mr. M- letter to the applicant wherein he provides the applicant the response from HRC. 5. On 20 February 2020, HRC 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. Recommend approval of the applicant’s request to transfer Post 9/11 GI Bill education benefits. The applicant had at least six years of active duty, did not have a negative action flag at the time of his retirement, and was undergoing the Integrated Disability Evaluation System (IDES) process; therefore, had he requested TEB during the IDES phase and prior to retirement, he would have had to request and receive an Exception to Policy (ETP) and extended or reenlisted to have 4 years in service from the TEB request date. b. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the 90-day implementation phase. The U.S. Army, DOD, and Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and TEB. c. The applicant’s last day in the service was 10 December 2009. He was added to the TDRL on 11 December 2009, which was within the 90-day implementation phase. Although he was in an IDES status, his retirement occurred during the 90 day implementation phase. In previous cases, the ABCMR has granted relief based upon the terminal leave or retirement date within the 90-day implementation phase. 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), in effect at the time states any Soldier who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier’s request to transfer entitlement to educational assistance, does not have an adverse action flag, and is being separated by a medical board, Soldiers with more than 6 years but less than 10 years will need an ETP. The ETP must be approved and the extension or reenlistment must be completed prior to a PEB unfit finding. The soldier must submit the transfer request after the medical separation order is issued, but before its 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 of service, his IDES processing and the reason and date of his separation. The Board considered the applicant’s requested transfer of benefits and the review and conclusions of the Human Resources Command advising official, to include the reason for denial of his initial request. Based on a preponderance of evidence, the Board determined that a correction was necessary to remedy an injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX 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 reflect: - The applicant submitted a request to transfer a minimum of one month of his Post-9/11 GI Bill education to his eligible dependents prior to the date of his retirement; - That his request was accepted and processed by an appropriate official, and; - His dependent is eligible to use these benefits in accordance with his allocation. 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. AR 621-202 (Army Educational Incentives and Entitlements), in effect at the time states any Soldier who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier’s request to transfer entitlement to educational assistance, does not have an adverse action flag, and is being separated by a medical board, Soldiers with more than 6 years but less than 10 years will need an ETP. The ETP must be approved and the extension or reenlistment must be completed prior to a PEB unfit finding. The soldier must submit the transfer request after the medical separation order is issued, but before its effective date. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010428 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1