ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 March 2020 DOCKET NUMBER: AR20180013308 APPLICANT REQUESTS: correction of his records to show he elected to transfer his Post-9/11 GI Bill education benefits to his spouse and son with an approved exception to policy (ETP) prior to his disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter to the Army Review Boards Agency, dated 23 September 2018 * Letter to the Army Review Boards Agency, undated REFERENCE: 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. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. The law 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. 4. On 22 June 2009, the Department of Defense established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's 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 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 duty or 20 qualifying years of Reserve service. 5. Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post-9/11 GI Bill Transfer of Education Benefits (TEB) 4-Year Service Obligation for Approved TEB Requests Submitted on/after 1 August 2013, provides that all Post-9/11 GI Bill TEB requests submitted and approved on/after 1 August 2013 will incur a 4-year service obligation from the TEB request date regardless of years in service except when precluded by either policy or statute from committing an additional 4 years (e.g., Temporary Early Retirement Authority). The 4-year service obligation incurred by TEB requests must be served in the same Army component. A 0, 1, 2, or 3-year service obligation will no longer be available for those who request TEB on/after 1 August 2013. By law, those Soldiers who retired and were placed on the Retired List on/before 1 August 2009 are ineligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty was on/before 31 July 2009. 6. Department of Defense Instruction 1341.13 states service members with at least 6 years, but less than 10 years of service, agree to an additional 4-year service obligation from the TEB request date. However, Soldiers in this time frame while in the Integrated Disability Evaluation System process are not permitted by the U.S. Army retention policy to extend or reenlist for the additional 4-year service obligation. An ETP to extend or reenlist must be approved. To initiate an ETP request, a Soldier must contact his or her servicing career counselor to request the initiation of an ETP request to extend or reenlist in order to meet the additional service obligation. The ETP request must be approved and the Soldier must extend or reenlist for the additional 4-year service obligation prior to the physical evaluation board (PEB) finding the Soldier is physically unfit as indicated on a DA Form 199 (PEB Proceedings). Soldiers with 10 or more years of qualifying service will not require an ETP, but must submit a request for TEB after the medical separation order has been provided to the Soldier and before the effective date of the medical separation order. The Soldier may request TEB through the TEB website and should email a copy of the medical separation order to the U.S. Army Human Resources. The Soldier's TEB service obligation will be adjusted to meet the Soldier's date of medical separation. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 originally requested information on transferring his education benefits from Staff Sergeant (SSG) C____, the Retention Noncommissioned Officer (NCO), in November 2014. After determining that he was eligible, he received the checklist/reenlistment packet from SSG C____. He completed all of the necessary paperwork, including the approval from his commander, Captain M____. a. Because of block leave, SSG C____'s office hours were extremely inconsistent and due to her failure to respond to missed calls and voicemails, he was unable to return the completed packet to her until mid to late January 2015, the week prior to their January-February field exercise. When he submitted the packet to her, she reviewed it and said it was good to go and that she would submit it. After returning and re-setting from their field exercise, and preparing for another, approximately mid-March 2015, he submitted his online request for transfer of education benefits (TEB). By this time, he believed enough time had passed for his reenlistment packet to have been submitted and approved, since he had not heard anything from SSG C____ saying otherwise. b. Shortly after submitting his TEB request online, he received the results of his pending PEB. The PEB determined he had two service-connected conditions that made him unfit for duty and therefore unable to continue his service after 8 years. Over the next 30-45 days, he checked the status of his PEB request weekly on the milConnect website. It wasn't until approximately mid to late April, possibly early May, that he saw that his request had been denied. At that point, he made multiple attempts to contact SSG C____, including going through his previous Retention NCO, Sergeant First Class J____ P____, who said she was extremely difficult to track down. Once he finally caught her in the office, he asked what had happened. In the following days he called her to follow up, and she told him that he had an outdated form in his original packet, and that the reenlistment had been denied because of that form and, therefore, his TEB request was denied. By this time, he was no longer eligible to reenlist, so she told him that there could be no further action on his part. He did not like her answer, considering she was the one who gave him the outdated form, and reviewed the entire packet in January, but he didn't know what to do and was beginning his terminal leave and was going to be out of the area for the following month. Shortly after returning to Colorado Springs, he began researching what could be done to correct what had happened. c. At this point, SSG C____ would no longer return his calls, so he contacted the 1st Support Brigade Combat Team Retention NCO. He explained the situation to him and asked for advice. The 1st Support Brigade Combat Team Retention NCO said that he would attempt to collect any available paperwork that supported his issue and instructed him to call him back the following week. When he called the Retention NCO, he said that he had spoken with newly promoted SFC C____ who supported what he had said, minus any error on her part, but said she no longer had any of his paperwork, so there was no physical support showing dates signed or dates of submission. The 1st Support Brigade Combat Team Retention NCO then instructed him to contact the U.S. Army Human Resources Command (HRC) for further instructions. d. He is certain the injustice was caused by an outdated form that was provided to him by a subject matter expert. 3. On 27 June 2015, he retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of temporary disability (enhanced). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 8 years, 4 months, and 8 days of net active service. 4. On 25 February 2020, the Chief, Education Incentives Branch, HRC, recommended disapproval of the applicant's request to transfer his Post-9/11 GI Bill education benefits based on the following: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Furthermore, Public Law 110-252, section 3020, 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 90 days of qualifying Post-9/11 GI Bill service, 6 years in an active duty or Selected Reserve status and no current adverse action flag, commit to the service obligation, and transfer benefits to the dependents through the TEB website, http://milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. b. HRC does not recommend administrative relief based on the following: (1) 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 education benefits to a dependent is considered an incentive, not a benefit. The transfer 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. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. (2) The TEB incentive does not require a formal one-on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility as stated in paragraph 5a above and makes dependents eligible by awarding at least 1 month to the dependent via the TEB website and fulfilling the TEB service obligation. (3) The applicant's sixth year in service was 20 February 2013. However, he was ineligible for TEB due to having an expiration term of service date of 9 January 2016 (less than 4 years). He would have needed to extend or reenlist to commit to the 4-year TEB service obligation. (4) On 31 October 2014, the applicant was enrolled in the medical disability process through the Integrated Disability Evaluation System. Because he had 6 to less than 10 years of service and was in the Integrated Disability Evaluation System process, any TEB request on/after this date would require an ETP through his unit to Army G-1 Enlisted Professional Development Branch to allow him to extend or reenlist to commit to the 4-year TEB service obligation. (5) On 11 February 2015, the TEB website shows the applicant submitted a TEB request, however, this office rejected his TEB request on 9 March 2015 due to insufficient retainability and he had not obtained an ETP to extend or reenlist for the required 4 years of service before the integrated disability evaluation system determination on 10 March 2015. On 17 March 2015, the applicant submitted another TEB request and this office rejected it due to insufficient retain ability and already being found "unfit for duty" by the integrated disability evaluation system. (6) On 10 March 2015, the PEB convened, found the applicant unfit for duty, and formally counseled him on being found unfit for duty. Therefore, any TEB request submitted on or after this date would be rejected because any ETP request for him to extend or reenlist would be rejected by Army G-1. If the PEB changed the determination to fit for duty at a later date, the applicant would have returned to duty and could have requested TEB again. (7) On 27 June 2015, the applicant was retired due to medical disability and placed on the Temporary Disability Retirement List effective 28 June 2015. (8) The benefits for administrative services tool shows the applicant is eligible for the Post-9/11 GI Bill benefits at the 100-percent payable rate. Although TEB is unavailable to him, his military service may make his dependents eligible for other types of assistance, attachment enclosed containing numerous agencies for the applicant that may assist him. 5. On 2 March 2020, the Army Review Boards Agency forwarded the advisory opinion to the applicant. On unknown date the applicant responded with: a. He is not refuting any policy or timeline provided by HRC; however, he provided responses and additional information for those responses. All responses are numbered and/or lettered to the appropriate section of the HRC memorandum. b. Paragraph 1: All requirements in this paragraph were met except "All benefits must be transferred before the Service Member separates or retires." This was attempted, and will be further explained in responses below. c. Paragraphs 2a and c: His reenlistment packet for TEB was initiated and all paperwork, memorandums, and commander's waiver/ETP were signed by his unit commander, CPT M____, prior to the service deadline and prior to being found unfit for duty by the PEB. Reenlisting was attempted; however, SFC C____ supplied all reenlistment paperwork, including forms, but failed to check if the forms she supplied had been updated prior to submitting his reenlistment packet to HRC. It was this error that caused his reenlistment packet to be returned (after successfully making it through the 1st Support Brigade Combat Team Retention Office). d. Paragraph 2d: As stated above, the unit commander, CPT M____, signed the ETP which was submitted with the reenlistment packet. e. Paragraph 2e: He submitted the TEB request to ensure that his benefits could be transferred. He was told multiple times by SFC C____ that his packet had been submitted and there were no "issues." f. Paragraph 2f: If the PEB found him fit for duty, he would have continued his service. 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 disability processing, his request for TEB and the absence of documentation reflecting a request for exception to policy to extend or reenlist prior to his approved disability retirement. The Board considered the review and conclusions of the HRC advising official. Based on a preponderance of evidence, the Board determined that the denial of the applicant’s request to transfer 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013308 7 1