ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2020 DOCKET NUMBER: AR20180014608 APPLICANT REQUESTS: * approval to transfer his unused education benefits to his wife in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill * retirement due to physical disability APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) for the period 14 August 1975 to 27 January 1976 * DD Form 214 fort the period 20 December 1976 to 15 December 1978 * DD Form 214 for the period 27 October 1980 to 23 September 1983 * Record of Discharge from the U.S. Naval Reserve (Inactive), dated 14 August 1989 * Record of Discharge from the U.S. Naval Reserve (Inactive), dated 17 April 1997 * DD Form 214 for the period 25 February 2008 to 27 August 2009 * DD Form 214 for the period 28 August 2009 to 30 August 2010 * DD Form 214 for the period 17 October 2010 to 30 September 2011 * Army National Guard (ARNG) discharge orders * National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service) * Department of Veterans Affairs (VA) service-connected disability compensation certification letter 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: a. He was mobilized in September 2009 and he transferred his Post 9/11 GI Bill education benefits to his wife. The transfer was done in paper format but now he is being told that it was done incorrectly and the transfer is not shown on any of his records. He was also told that the transfer should have been done via computer. He was not informed that the transfer had to be accomplished electronically and all this time he thought that the transfer was done. b. He believes that he is due retirements benefits. He was told during his discharge in 2012 that for a medical retirement, all the paperwork was done and submitted on his behalf. He inquired about it and was told that no retirement or other benefits were coming to him. c. His spouse is trying to better herself by going back to school and use the GI Bill benefits. He is a veteran that served 22 years in three different branches and he feels that he is due what was promised to him and his family. 3. Following service in the U.S. Marine Corps, the U.S. Naval Reserve, and a break in service from 15 August 1989 to 24 September 2007, the applicant enlisted in the California ARNG (CAARNG) on 25 September 2007. 4. The applicant's DD Form 214 shows he served on active duty in support of Operation Enduring Freedom from 28 August 2009 to 30 August 2010. An additional DD Form 214 shows he also served on active duty from 17 October 2010 to 30 September 2011. 5. The applicant's ARNG Retirement Points History Statement, prepared on 10 June 2011, shows he had completed 14 years of creditable service for retired pay. 6. Orders issued by the CAARNG on 28 September 2012, directed the applicant's discharge from the ARNG and as a reserve of the Army effective 24 September 2012. 7. The applicant's NGB Form 22E confirms the applicant was honorably discharged on 24 September 2012. The NGB Form 22 also shows he was credited with completion on 16 years of total service for retired pay and that he was assigned a reentry eligibility (RE) code of "1." 8. The applicant's Personnel Qualification Record, prepared on 28 September 2012, shows in Section J (Physical Data) a physical profile serial system code of "111111." 9. There is no evidence in the applicant's available records showing he attempted to transfer his Post 9/11 GI Bill education benefits to his eligible family members prior to his discharge from the ARNG. 10. There is also no evidence in the applicant's available records indicating he was unable to perform his military duties due to a physical disability. 11. The applicant provided a VA service-connected disability compensation certification letter, dated 18 September 2017, showing he was granted service-connected disability compensation by the VA with a 50 percent disability rating. 12. On 26 November 2019, the NGB, Special Actions Branch, provided an advisory opinion. The NGB recommends denial of the applicant's request(s) and states: a. The applicant requests for the CAARNG to complete a TEB of his Post-9/11 GI Bill to his wife. He claims he signed documentation to transfer his Post-9/11 GI Bill to his wife prior to his discharge from CAARNG and that at the time his unit assured him the TEB would be processed. He later discovered the TEB had not been completed. b. Transfer of Post 9/11 GI Bill Benefits to dependents was established to promote retention. Directive Type Memorandum 09-003, dated 22 June 2009, identifies specific service obligations required for individuals that choose to use TEB. Section 3, paragraph a. (1) gives the following guidance for eligible individuals: 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 has at least 6 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election. c. The applicant's case indicates that he completed a period of qualifying service for the Post 9/11 GI Bill after deploying in support of Operation Enduring Freedom from 10 October 2009 to 18 August 2010 in accordance with Title 10, USC, section 12302 as shown on his DD Form 214. However, there is no evidence to prove that he transferred these education benefits while in the service as required by Title 38, USC, section 3319. He indicated that he signed a paper to request transfer of benefits, but the transfer was never authorized to be completed on paper; it has always been completed online through the TEB web application at https://www.dmdc.osd.mil/TEB/. Additionally, he reached his expiration term of service on 24 September 2012 and did not complete the required four year service obligation. d. It is their opinion that they cannot support the applicant's claim to TEB because there is no evidence (emails, memorandum, etc) in his case file that suggests there was a deliberate intent to transfer benefits to his spouse during any period of service and he did not complete the four year service obligation required to be eligible for TEB. e. Reference the applicant's request for retirement benefits, there is not clear evidence at this time that he is due benefits. He claims he completed 22 years of service, however his closed-out Retirement Points Account Manager (RPAM) and his separation order from the CAARNG both state that he had 16 years of credible service toward retired pay. He will need to provide additional documentation to prove the length of time he served in order to be eligible for non-regular retirement benefits. f. This opinion was coordinated with the ARNG Incentives Office and the ARNG Retirement Office. g. Their opinion was coordinated with the CAARNG. 13. The NGB's advisory opinion was provided to the applicant on 28 January 2020 and given the opportunity to provide additional evidence and/or comments. He did not respond. 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 to include periods of active duty and his honorable discharge from the ARNG, with a reenlistment eligibility code of 1. The Board considered the review and recommendation of the NGB advising official and found insufficient evidence to show the applicant made an application to transfer education benefits or to show that he completed the required service obligation to be eligible for transfer. The Board considered the applicant’s VA compensation certification letter, but found insufficient evidence that the applicant had a condition that failed to meet medical retention standards at the time of his service. Based on a preponderance of evidence, the Board determined that the denial of the applicant’s transfer of education benefits or the absence of a medical separation were 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. 10/7/2020 X CHAIRPERSON 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 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. The Post-9/11 GI Bill went into effect on 1 August 2009. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. 3. The Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members on 22 June 2009. 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 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. 4. The Army released the Post-9/11 GI Bill Implementation Policy on 10 July 2009, which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. 5. The DOD, the Army, and the VA initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent TEB. 6. Title 38, USC, section 3319, prohibits service members who are no longer serving on active duty from transferring educational benefits. The legislation specifically states "an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed." 7. Army Regulation (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 8. Army Regulation 40-501, chapter 7 (Physical Profiling) of the regulation in effect at the time of the applicant's separation, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. 9. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army, Army Reserve, and Army National Guard. This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Chapter 3 prescribes basic eligibility for prior- service applicants for enlistment and includes a list of Armed Forces RE codes. RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met. 10. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. //NOTHING FOLLOWS//