IN THE CASE OF: BOARD DATE: 21 August 2020 DOCKET NUMBER: AR20190012952 APPLICANT REQUESTS: the ability to transfer his Post 9/11 GI Bill education benefits to his daughter. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Privacy Authorization Form, dated 21 May 2019 * Letter to Congressman from the Department of Veterans Affairs, dated 10 June 2019 * Letter to Chief, Legislative Liaison, from the Congressman, dated 30 September 2019 * Email from the District Casework Manager in the Congressman’s office to the Army Review Boards Agency Congressional Liaison, dated 30 September 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 should be able to transfer his Post 9/11 GI Bill benefits to his daughter. He was not informed that he could transfer his benefits prior to separation from the military. At the time of retirement, his daughter was in the third grade. 3. A review of the applicant’s available service records reflects the following: a. On 25 October 2005, he enlisted in the Regular Army (RA) for a period of 3 years in the rank of specialist (SPC)/E-4. b. On 4 May 2007, he reenlisted in the RA for a period of 6 years, establishing his expiration of term of service as 3 May 2013. c. On 20 October 2010, the applicant signed a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) which shows under Part IV (Values/NCO Responsibilities), item c (Physical Fitness & Military Bearing), that he failed to meet Army Physical Fitness Test and height/weight standards. d. On 10 January 2011, he was ordered to deploy in a temporary change of station status for 365 days in support of Operation Enduring Freedom effective 9 February 2011. e. On 1 February 2012, the applicant signed a DA Form 2166-8 which shows under Part IV, item c, that he failed to meet height/weight standards and was on a limited duty profile that hindered his ability to perform his military occupational specialty. f. On 10 May 2012, he verified the information on his Enlisted Record Brief. The Enlisted Record Brief shows he was flagged with code "KA" (the flag code applicable to noncompliance with the Army Body Composition Program) and the flag effective date was 8 July 2010. g. On 21 May 2012, in conjunction with his retirement for disability, he signed a DA Form 2339 (Application for Voluntary Retirement) which shows his desired retirement date was 6 August 2012. His active federal service in the Army was 6 years, 9 months, and 12 days. His total active service creditable for retirement, including his time in the U.S. Marine Corps, was 10 years, 9 months, and 12 days. h. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired due to temporary disability on 6 August 2012. i. On 28 August 2014 a Physical Evaluation Board was conducted finding the applicant physically unfit and recommending a rating of 50% and that his disposition be permanent disability retirement. He received a 50% rating for post-traumatic stress disorder. j. On 10 September 2014, he was removed from the Temporary Disability Retired List, and on the date following, he was permanently retired due to disability. k. His records are void of documentation regarding a transfer of education benefits. 4. The applicant provides: a. Privacy Authorization Form, dated 21 May 2019 in which the applicant requested assistance from his Congressman on being able to transfer his Post 9/11 GI Bill to his dependents. He states he wanted to transfer his Post 9/11 GI Bill to his daughter. He did not know he had to this before medically retiring in 2012. His children were young when he got out, and it would not have made sense in 2012. b. Letter to Congressman from the Department of Veterans Affairs (VA), dated 10 June 2019, wherein they stated, according to U.S. Code 38, Section 3319, the transfer of education benefits is used to promote recruitment and retention in the uniformed services, and the benefit can only be transferred while the member is serving in the armed forces. The applicant was not approved by the Department of Defense (DOD) to transfer benefits to his dependents before retiring on 6 August 2012. Since he is now retired, he is no longer able to access the DOD website and initiate a transfer of education benefits (TEB) request. Further, they stated the DOD grants eligibility for TEB, and the VA administers the benefits. The VA does not have the authority to assist unless DOD approves the entitlement. He may request a correction through the Army Board for Correction of Military Records. c. Letter to the Chief, Legislative Liaison, from the Congressman, dated 30 September 2019, requesting a careful review be given to the applicant’s request for correction of his military records. d. Email from the District Casework Manager in the Congressman’s office to the Army Review Boards Agency Congressional Liaison, dated 30 September 2019, requesting review and response on the applicant’s request. 5. See REFERENCES below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board noted that transfer of Post-9/11 GI Bill education benefits is a retention incentive that requires most eligible Soldiers to commit to an additional 4 years of service. In this case, the Board further noted that the applicant was flagged, which would have prevented him from committing to any additional service beyond the term in which he was serving. Based on a preponderance of evidence, the Board determined the applicant did not meet the requirements to transfer his Post-9/11 GI Bill education benefits to his dependents and there is no error or injustice in this case. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Public Law 110-252 section 3319 (Authority to Transfer Unused Education Benefits to Family Members) states that an individual transferring an entitlement to educational assistance under this section shall designate the dependent or dependents to whom such entitlement is being transferred, designate the number of months of such entitlement to be transferred to each such dependent and specify the period for which the transfer shall be effective for each dependent. 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. 3. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. All requests and transactions will be completed through the Transferability of Education Benefits Web application. a. Transferability of Unused Benefits to Dependents. For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component. Soldiers whose request to transfer benefits is approved will incur an additional service obligation in accordance with the below policy. Soldiers are expected to serve the additional service obligation. b. Eligibility. (1) Any Soldier of the Armed Forces 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, is eligible for the Post 9/11 GI Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election. c. Failure to Complete Service Agreement. Except as provided below, if a Soldier transferring entitlement under this section fails to complete the service agreed to by the Soldier under paragraph 17a in accordance with the terms of the agreement of the Soldier under that paragraph, the amount of any transferred entitlement that is used by a dependent of the Soldier as of the date of such failure shall be treated as an overpayment of educational assistance and will be subject to collection by Department of Veterans Affairs (DVA). (1) Exceptions: Discharge or release from active duty for a physical or mental condition not a disability and that did not result from the Soldier’s own willful misconduct, but did interfere with the performance of duty. (2) The DVA has agreed to not recoup paid benefits or revoke transferred benefits for Soldiers who have agreed to an additional service commitment and who did not complete the agreed upon service due to separation for medical disability or through a service force shaping initiative. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012952 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1