ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 8 December 2021 DOCKET NUMBER:  AR20210007540 
APPLICANT REQUESTS: reinstatement of his Post 9/11 GI Bill Transfer of Education Benefits (TEB). 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) . Oath of Extension 
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, in effect: 


a. 
He reenlisted in the Army National Guard (ARNG) on 14 June 2017 to have all of the education benefits transferred to his daughter. His local unit was to ensure the transfer data was submitted. When his daughter checked for educational benefits to begin the process of her continued education, it ws learned the ARNG unit failed to submit the necessary forms/paperwork to have the educational benefits transferred. 

b. 
His enlistment is coming to a conclusion and there is not sufficient enlistment time, according to the record, to transfer the benefits. If the ARNG unit would have submitted the required forms as requested by the applicant, the benefits would have been transferred and the application would not be necessary. 

c. 
If the transfer of educational benefits would have been transferred as promised by the ARNG, when he reenlisted, the educational benefits would have been transferred and his daughter could continue to process the necessary paperwork to the college of her choice. Since his local unit failed to complete the transfer of educational benefits, 


his daughter is now uncertain if the benefits can be transferred thus interfering and/or prohibiting the child to continue her education. 
d. He just learned the educational benefits were not transferred when he received a denial email for his daughter's educational benefits. 
3. 
On 10 June 1994, the applicant enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 2 August 1994, he was discharged from the USAR DEP and entered active duty for a period of 3 years. 

4. 
On 8 July 1997, the applicant was discharged from the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 2 years, 11 months, and 7 days of active duty service. His character of service was under honorable conditions (general). 

5. 
On 14 November 2001, the applicant enlisted in the Army for a period of 3 years. On 31 December 2003, he reenlisted in the Army for a period of 4 years. On 3 March 2005, he was discharged from he Army. His DD Form 214 shows he had 3 years, 3 months, and 20 days of active duty service with 2 years, 11 months, and 7 days of prior active duty service. He was separated for Disability, severance pay and his character of service was honorable. 

6. 
On 28 January 2005, the applicant underwent a Physical Evaluation Board, which found he had chronic pain in his left ankle with osteneurosis of talus at 10 percent disability. The board found the applicant should be separated with severance pay. The applicant concurred with the finding and waived a formal hearing in his case. 

7. 
On 9 February 2007, the applicant enlisted in the ARNG for a period of 6 years. On 12 November 2007, the applicant elected to waive his Department of Veteran Affairs (VA) benefits to receive his ARNG benefits. 

8. 
The applicant received Reports to Suspend Favorable Personnel Actions (Flag) on: 

. 18 November 2007, for Army Physical Fitness Test (APFT) failure . 16 May 2008, removal of a flag . 21 April 2010, for APFT failure . 11 June 2011, removal of a flag . 5 October 2012, for weight control 

9. 
On 19 March 2009, a memorandum states and injury to the applicant's right fifth finger dislocation was approved in the line of duty. 

10. 
On 17 October 2009, the applicant was released from active duty and returned to his ARNG unit. His DD Form 214 shows he had entered active duty on 19 September 

2008. He had 1 year and 29 days of active duty this period with 6 years, 2 months, and 27 days of prior active duty service and 1 year, 7 months, and 10 days of prior inactive service. He had service in Iraq from 10 January 2009 through 17 September 2009. He was honorably released for completion of required active service. 

11. 
On 2 February 2011, a memorandum states his left ankle avascular necrosis of the talus with secondary post-traumatic arthritis that occurred during Operation Iraqi Freed was approved in the line of duty. 

12. 
The applicant completed Oaths of Extension in the ARNG on: 

. 15 March 2012, for 2 months . 15 December 2012, for 1 year . 9 February 2014, for 6 years . 22 February 2020, for 1 year . 27 March 2021, for 1 year 

13. 
On 12 June 2014, a Statement of Medical Examination and Duty Status was completed on the applicant. It shows he had abdominal pain, which incurred in the line of duty. 

14. 
In the processing of this case, an advisory opinion was obtained on 1 October 2021, from the Chief, Education Services Branch, National Guard Bureau (NGB). The advisory states, the applicant gained eligibility for the Post 9/11 GI Bill after deploying in 2008 to 2009 and was eligible to TEB from the beginning of the program on 1 August 2009. He requested TEB on 17 March 2017. His request was rejected because he had been flagged and he had entered the Medical Board process prior to initiating his TEB. Regulations do not allow transfer of benefits when a Solider is flagged or in Medical Board Proceedings. Though the applicant was eligible to TEB for 8 years between 2009 to 2017, he did not request TEB during that period. Because the applicant had an active flag at the time he requested TEB and was ineligible to meet the four-year service obligation, they did not recommend the board grant relief. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 

15. 
The applicant was provided a copy of this advisory opinion on 11 October 2011, to provide him an opportunity to comment and/or submit a rebuttal.  He responded, in part: 


a. 
He sincerely believes the records should be corrected to reflect the Post 9/11 GI Bill Benefits were approved before his separation for the following reasons. 

b. 
Title 38 as explained to him, when he was seeking to transfer his Post 9/11 GI Bill benefit and prior to transferring the benefits, he would have to reenlist/extend. He reenlisted in good faith without any knowledge there was a flag on him. To his knowledge, his reenlistment was valid and was processed without delay. If there was an 


active flag against his record, why didn't his unit commander notify him and let him know a TEB could not be approved because he was not eligible for retention or reenlistment. Instead, he completed the appropriate enlistment documents and was left under the impression that the reenlistment was approved. He was prepared to continue to serve for the needs of the Army. 
c. 
His TEB request, dated 17 March 2017, was rejected because of an issued flag. He was never notified of such action against him or his record. He did have an encounter with the legal system because of some poor decisions/actions he made but ultimately the court ruled convicting him or minor summary and misdemeanor offenses of which he satisfied. Therefore, he believes the flag had to have been placed against his record with judgmental decisions by his commander without having the final judgement of the court regarding the offenses he was sentenced for. However, even if a flag was placed against his service record for any criminal actions, refer to the attached Inspector General (IG) report, dated January 2013, mandating that a flag be reviewed monthly at a minimum. If that would have occurred, the commander would have discovered his status changed from unfavorable to favorable before the March 2017 reenlistment/extension, thus, there would not have been a flag at the time of the reenlistment/extension. 

d. 
The memorandum concludes the paragraph by reasoning the ARNG unit did not process the applicant's extension packet because of the medical board status. That the memorandum failed to mention is the applicant was referred to a Medical Evaluation Board (MEB) on 23 January 2017 but the MEB is still pending four plus years later because the unit failed to do a line of duty as required by regulation, which requires the unit to provide prompt disability processing while ensuring the right and interests of the government and the Soldier are protected. The applicant's unit failed to provide prompt processing as required by regulation, nor did the unit submit any of the other required documentation in a timely manner for the MEB to be valid. Therefore, the applicant argues since none of the required documentation was submitted by his unit to make the MEB valid or active, the applicant's reenlistment/extension was valid and should not have been denied. 

e. 
With the aforementioned argument, the applicant respectfully requests the Board take into consideration the applicant's unit failed to follow Army Regulations and the IG Bulletin ensuring the applicant's interests and rights were protected. The NGB's recommendation should be null and void since the applicant's unit did not submit the required documentation in a timely manner and failed to remove the flag when required. 

f. 
In conclusion, the MEB documentation required by the unit was not completed until 31 August 2021, and only then with the assistance and guidance of the state MEB Health System Specialist. 


16. With the applicant's rebuttal, he submitted the following documents for the Board's consideration: 
a. 
An IG Suspension of Favorable Actions (Flag) January 2013 bulletin, which describes the processing of Flags. 

b. 
An excerpt of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 


17. The applicant is requesting the ability to transfer his 9/11 GI Bill benefits to his daughter. 
a. 
The advisory opinion states the request was denied because the applicant was flagged and going through the MEB process, at the time of his request. The applicant had from 2009 to 2017 to transfer the benefits and did not transfer them until 2017, when he was under the flag and going through medical processing. 

b. 
The applicant's service record is void of a flag for 2017 and medical processing documentation in 2017. 

c. 
Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 

d. 
On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. 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. 


(1) 
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. 

(2) 
Has at least 10 years of service in the Armed Forces (active duty and/or service in the 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. 

(3) 
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 service or 20 qualifying years of Reserve service. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory guidance and public law.  The Board considered the applicant’s statement, his record of service, National Guard Bureau (NGB) advisory opinion and documents provided by the applicant. Notwithstanding the 
NGB opinion finding insufficient evidence to support the applicant’s request and 
recommend denial. However, the Board found sufficient evidence in his military records showing the applicant gained eligibility for the Post 9/11 GI Bill after deploying in 2008 to 2009 and was eligible to TEB from the beginning of the program on 1 August 2009. Furthermore, the Board found the applicant had not been properly counsel and his unit did not submit his documentation in a timely manner. The Board agreed based on regulatory guidance and public law he is eligible to transfer benefits. Therefore, the Board granted relief. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
XXX XXX XX GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
: : : DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The Board determined that the evidence presented was 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 by showing the applicant filed his application to transfer his educational benefits to his daughter prior to his 23 January 2017 entry into the Disability Evaluation System process, the application was approved by the Army, his active duty service obligation was met and his daughter is eligible to receive his education benefits. 
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. 
ADMINISTRATIVE NOTE(S): N/A 
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, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 

3. 
On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. 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. 


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. 

b. 
Has at least 10 years of service in the Armed Forces (active duty and/or service in the 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. 

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 service or 20 qualifying years of Reserve service. 


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