IN THE CASE OF: BOARD DATE: 13 February 2023 DOCKET NUMBER: AR20220008165 APPLICANT REQUESTS: * Transfer of Education Benefits (TEB) of her Post 9/11 GI Bill benefits to her dependent * A personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant states, in effect, on 26 July 2019, she applied to TEB, but her application was rejected. The data did not show a reason for rejection. She submitted/completed her application and had remaining time on her contract. She received no information as to why her TEB application was denied. Her application should have been approved, at the time. The only thing she desires is that her dependent son be able to attend college with her benefits. 2. The applicant's service record contains the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) which shows on 4 December 1998, the applicant enlisted in the Army National Guard (ARNG) for a period of 8 years. b. DD Form 4 shows on 25 October 2006, the applicant reenlisted in the ARNG for a period of 1 year. c. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was a member of the ARNG and entered active duty on 25 July 2000 and was released on 19 January 2001. She completed 5 months and 25 days of active duty service. d. National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the ARNG on 4 December 1998 and was transferred to U.S. Army Reserve Control Group (Reinforcement) on 31 March 2004. She completed 5 years, 3 months, and 27 days of net service this period. e. DA Form 4836 (Oath of Extension or Reenlistment) shows on 12 June 2007, the applicant extended her enlistment in the ARNG for a period of 6 years. f. DD Form 214 shows the applicant entered active duty, as an ARNG member, on 7 November 2009 and was released on 2 December 2010. She completed 1 year and 26 days of active duty service. She had service in Afghanistan from 3 January 2010 to 29 October 2010. g. DA Form 4836 shows the applicant extended her enlistment on 6 December 2012 for a period of 6 years. h. DD Form 214 shows the applicant entered active duty, as an ARNG member, on 15 June 2012 and was released on 11 July 2013. She completed 1 year and 27 days of active duty service. She had service in Afghanistan from 14 August 2012 until 7 May 2013. i. A DA Form 4836 shows the applicant extended her enlistment on 19 September 2019 for a period of 6 months. On 10 March 2020, she extended her enlistment for a period of 1 year, and on 9 April 2021, she extended her enlistment for a period of 1 year, and again on 17 February 2021, she extended her enlistment for a period of 6 months. j. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows on 23 October 2021, the applicant underwent a PEB which found her physically unfit and recommended a rating of 50 percent and that she be permanently retired for disability. k. Memorandum from the State of North Carolina, Department of Public Safety, dated 16 December 2021 Subject: Notification of Eligibility for Retired Pay for Non- Regular Service (20 Years). l. Orders Number D 026-06, published by Headquarters, U.S. Army Physical Disability Agency, dated 26 January 2022 shows the applicant was placed on the retired list on 25 February 2022 with 50 percent disability. m. NGB Form 23A (ARNG Current Annual Statement), dated 14 April 2022, shows the applicant completed 20 years, 2 months, and 21 days creditable service for retired pay. 3. On 17 November 2022, the NGB, Chief, Special Actions Branch, provided the Board an advisory opinion, which states in effect: a. The applicant is requesting correction of her records to reflect that her TEB be approved. The advisory recommended disapproval of the applicant's request. b. Per Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements), paragraph 4-15a(1), Soldiers must be eligible for the Post 9/11 GI Bill and not be serving under a suspension of favorable personnel actions at the time of the Soldier's request to TEB. c. On 30 June 2019, the applicant requested TEB and her request was rejected due to an adverse action flag (the flag was not available for the Board's consideration) for failure of the Army Physical Fitness Test (APFT). Since she was under a suspension of favorable personnel actions at the time of her TEB request, relief is not recommended. d. If the applicant can provide official documentation that the flag was lifted prior to her original TEB request, they would reevaluate and reconsider her request. 4. On 15 November 2022, the Chief, Education Services Branch, NGB provided a second advisory opinion, which provided the same information as the advisory opinion provided by the NGB, Chief, Special Actions Branch. 5. On 23 November 2022, the advisory opinions were sent to the applicant to allow her the opportunity to respond. She did not respond. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board determined that relief was not warranted. The Board carefully considered the applicant's contentions, military records, and regulatory guidance. The Board reviewed the provided National Guard Bureau advisories regarding the applicant’s request for the transfer of her educational benefits. The Board noted that the applicant had been flagged for failure of the Army Physical Fitness test and, as a result, under suspension of favorable action. Therefore, the Board determined relief was not warrant. 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 Board determined 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. Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements) states in paragraph 4-15(a)(1) Soldiers must be eligible for Post 9/11 GI Bill Benefits and not be serving under a suspension of favorable personnel actions, at the time of the Soldier's request to TEB. 2. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy reference Public Law 110-252, that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. 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 and if cannot commit to 4 additional years due to an Retention Control Point (RCP) or Mandatory Retirement Date (MRD), must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred. c. Procedures. All requests and transactions will be completed through the Transferability of Education Benefits Web application. d. Designation of Transferee. A Soldier transferring an entitlement to educational assistance under this section shall: (1) Designate dependent or dependents they want to transfer unused benefits to (2) Designate the number of months of unused benefits transferred each to dependent; and (3) Specify the period for which the transfer shall be effective for each dependent. e. 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 DVA. Exceptions: * The death of the Soldier * Discharge or release from active duty for a medical condition which pre- existed the service of the Soldier and was not service connected * Discharge or release from active duty for hardship * 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 * 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 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008165 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1