IN THE CASE OF: BOARD DATE: 29 August 2023 DOCKET NUMBER: AR20230001775 APPLICANT REQUESTS: Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his spouse. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 28 June 2019 • Department of Veterans Affairs (VA) summary of benefits, 27 January 2021 • Applicant's statement, 21 November 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 served in the Army for 9 years and 11 months. He wished and planned to be a member of the Army until retiring, but due to injuries sustained in his time overseas, he was unable to. He is now an Army disabled veteran with 100% disability. Given his DA Form 199 includes his diagnosis of Post-Traumatic Stress Disorder (PTSD), among other injuries, he is writing in hopes of achieving relief through the Army Review Boards Agency and ABCMR in an effort to transfer his post 9/11 GI Bill to his wife. b. He had every intention of transferring these benefits to her, but unfortunately did not do so in time, having found out the benefits must have been transferred while on active duty status. He hopes and prays the review board may transfer his GI Bill benefits to his wife. He believes the inability to transfer his educational benefits to be an injustice, given he served honorably. c. He is thankful to the Board for potentially correcting this and allowing his wife to reap the educational rewards he had served to achieve. He is unable to utilize these benefits himself given his numerous injuries that were sustained not only in training but also in combat, which inhibit him from being able to pursue higher education. 3. A review of the applicant's military record shows the following: a. He enlisted in the Regular Army on 28 July 2010 and served continuously through multiple reenlistments until he was medically separated with severance pay. b. On 28 June 2019, an Informal PEB found the applicant physically unfit for left ankle chondromalacia with lateral collateral ligament sprain, status post fracture with tendon repair and brostrom surgery, and recommended a rating of 10% and that his disposition be separated with severance pay. c. On 20 October 2019, the applicant was honorably discharged by reason of "disability, severance pay, combat related (enhanced)." DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years, 2 months, and 23 days of net active service. He served in Afghanistan from 26 February 2012 through 8 September 2012 and 27 February 2014 through 11 November 2014. 4. The applicant provides a VA letter dated 27 January 2021, which summarizes his benefits and shows he has a combined service-connected evaluation of 100 percent, and he is totally and permanently disabled due solely to his service-connected disabilities, effective 21 October 2019. 5. On 25 May 2023, the U.S. Army Human Resources Command (HRC), Chief, Education Incentives Branch, provided an advisory opinion and recommended disapproval. The advisory official stated: a. Recommend disapproval for the applicant's request for Post 9/11 GI Bill Transfer of Education Benefits. The Post 9/11 GI Bill is a Service Member's benefit; however, TEB is a retention incentive requiring an Additional Service Obligation (ASO) calculated from their TEB request date. It is always the Service Member's responsibility to know their TEB ASO period and the date they will complete their requirement, called the Obligation End Date (OED). To transfer the Post 9/11 GI Bill to dependents, an individual must be on Active Duty or in the Selected Reserve on or after 1 August 2009; have at least six years in Active Duty or Selected Reserve status; and have no current negative action flag (i.e., height and weight flag, Army Combat Fitness Test/Army Physical Fitness Test failure flag), commit to the ASO, and transfer benefits to the dependents through the TEB website at http://milconnect.dmdc.osd.mil. Benefits must be transferred before the Service Member separates or retires. Public Law (PL) 110-252 makes no provisions for waiving this requirement. b. We do not recommend administrative relief based on the following: (1) Soldiers earn the Post 9/11 GI Bill for their use because of their Active-Duty service; however, the ability to transfer it to their eligible dependent(s) is neither a reward for service or a transition benefit, but a retention incentive (e.g., much like a reenlistment bonus) requiring the commitment to and then fulfillment of the mandatory by-law 4-year ASO. Furthermore, the Post 9/11 GI Bill TEB program is an integral part of the Army's talent management initiative. Consequently, the Post 9/11 GI Bill transfer incentive was included in the statute for the express purpose of recruitment and retention. (2) Soldiers receive counseling on all GI Bills, including the Post 9/11 GI Bill benefit and its TEB incentive at various venues throughout the Soldier's career (in/outprocessing at Education Centers, Commander's Calls), upon demobilization or release from Active Duty (REFRAD), and during the last year before separation or retirement (Soldier for Life (SFL)-Transition Assistance Program (TAP)). Soldiers have had access to and received counseling on GI Bill benefits through SFL-TAP (i.e., ACAP XXI or TAP XXI) since 2002 on-line and in-person. (3) A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense, and Department of Veterans Affairs initiated a comprehensive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. This information was available to the applicant prior to his retirement. (4) The applicant was eligible to transfer his Post 9/11 GI Bill starting 28 July 2016, when he attained six years of qualifying service, until the day before he entered the Integrated Disability Evaluation System (IDES) on 27 January 2019. Effective 20 October 2019, the applicant was placed on the United States Army Retired List. Our records indicate that he did not submit a TEB request in the approximately three years he was eligible to participate in the program, from the time he reached six years in service in 2016 until before he entered the IDES in 2019. (5) Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements), effective 26 October 2017, paragraph 4-15a(2)(b) stipulates that "Soldiers with at least 6 years of eligible service who have not yet transferred benefits and are enrolled in the IDES, which includes Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB), must be found "fit for duty" and commit to four years from the TEB request date in order to be approved for TEB." On 28 January 2019, the applicant was enrolled in the medical disability process through the IDES. On 28 June 2019, the PEB convened and found the applicant "unfit for duty.'' With his "unfit for duty" determination, the applicant could no longer commit to the required ASO and, consequently, was ineligible for TEB. (6) The applicant could have obtained the TEB eligibility criteria through the Department of Defense Directive-Type Memorandum 09-003 (dated 22 June 2009), Attachment 2, paragraph 3a(3), the Department of the Army Post 9/11 GI Bill Policy Memorandum (dated 10 July 2009), paragraph 17a(4), DoD, DA, and HRC websites, various briefings at the installation level, and briefings through SFL-TAP. He could have used the Department of Defense and Department of the Army resources available to him to verify his participation in the transfer of benefits program. (7) All TEB information available includes the requirement to transfer while either in Active Duty or Selected Reserve status, and the requirement to serve an additional service obligation. Specifically, the DA Post 9/11 GI Bill Policy Memorandum, paragraph 17 (second sentence) stated, "For the purposes of transferability, Armed Forces include all Active-Duty service and all Selected Reserve service regardless of branch of service or component." (Please note only certain sections of Active-Duty qualify under title 10). Also, paragraph 17g (1) stated, "Time for Transfer. A Soldier 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." (8) In correspondence to your office [Army Review Boards Agency], the applicant stated, "I had every intention of transferring these benefits to [his Spouse, Mrs. R_ J_], but unfortunately did not do so in time, having found out the benefits must have been transferred whilst on active duty status." Please know that Mrs. R_ J_ did not become the applicant's dependent until 4 June 2020, which is after his retirement date of 20 October 2019; therefore, per PL 110-252 Section 3319 and associated Department of Defense (DoD) and Army policies and regulations, he would not have been able to transfer education benefits to her while in an active duty or Selected Reserve status. Furthermore, if the applicant's request for relief is granted, Mrs. R_ J_ will not be eligible to receive education benefits because she was not the applicant's dependent while he was serving. c. Although TEB is unavailable to the applicant, his military service may make his dependents eligible for other types of assistance. Please refer to the enclosed document containing a list of numerous agencies that may assist. Additionally, the Post 9/11 GI Bill benefits are still available to the applicant with no delimiting date as he retired after 1 January 2013 and therefore falls under the "Forever GI Bill" authorized by PL 115-48. 6. On 13 June 2023, the applicant responded to the advisory via email and stated, he read the document [HRC advisory opinion] and feels that his circumstances have not been properly taken into account. When he was getting out of the Army he did not nor could not comprehend the extent in severity of his PTSD. Due to the severity of his PTSD, he has lost multiple jobs due to the inability to work along other people. This packet also included a page that said that they had not yet received any supporting information to "base the claim office." However, all documents were sent in an appropriate time and did receive back with packet. He would appreciate further explanation, if possible, the best number to reach him at is (XXX) XXX-XXXX. Once again, he would really appreciate an opportunity to hear from somebody about the findings that they have made in hopes to understanding the decision better thank you. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The evidence shows the applicant served on active duty from 28 July 2010 to 20 October 2019, completing over 9 years and 2 months of active service. The Board reviewed and was persuaded by the HRC advisory official’s finding the applicant was eligible to transfer his Post 9/11 GI Bill starting 28 July 2016, when he attained six years of qualifying service, until the day before he entered IDES on 27 January 2019; however, there is no evidence he submitted a TEB request in the approximately three years he was eligible to participate in the program, from the time he reached six years in service in 2016 until before he entered the IDES in 2019. Additionally, the applicant’s intended dependent became the applicant’s dependent did not become the applicant's dependent until 4 June 2020, which is after his retirement date of 20 October 2019. Therefore, she is ineligible. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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. 8/29/2023 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 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that 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. The ABCMR will decide cases based on the evidence of record. The ABCMR is not an investigative agency. 3. The Post-9/11 GI Bill went into effect on 1 August 2009. Public Law 110-252, section 3319 (Authority to transfer unused education benefits to family members), 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 Veterans Affairs (VA) is responsible for final determination of eligibility for educational benefits under this program. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement to an eligible dependent or a combination of eligible dependents. 4. AR 621-202 (Army Educational Incentives and Entitlements), prescribes Army-unique policies, responsibilities, and procedures for the administration of Veterans' education programs and education incentives authorized by law, and provides information on Title 38, USC, Chapter 30 (38 USC Chapter 30), 38 USC Chapter 32, 38 USC Chapter 33, Title 10 USC Chapter 1606, and 10 USC Chapter 1607. This major revision clarified TEB eligibility. a. Paragraph 4-15 states Soldiers may elect to transfer their Post-9/11 GI Bill education benefits to their spouse, one or more of their children, or a combination of spouse and children through the Transfer of Education Benefits (TEB) website in the milConnect portal at https://www.dmdc.osd.mil/mil-connect or http://milconnect.dmdc.mil. Only dependents listed as eligible in the TEB website may receive the Post-9/11 GI Bill education benefit. TEB is neither an entitlement nor a transition benefit but was specifically identified by statute as a tool for recruitment and retention of the career force. The ability to transfer the Post-9/11 GI Bill education benefit was created as a recruitment and retention incentive for additional service within the Uniformed Services. Soldiers may increase, decrease, or revoke months to an eligible dependent at any time as long as at least one month is transferred to the dependent before the Soldier leaves the Armed Forces. Once a Soldier leaves service, the Soldier may not transfer benefits to dependents who had not received at least one month while the Soldier was on active duty or in the Selected Reserve (SELRES). The regulation also states: b. Paragraph 4-15a(2)(a) states that, Soldiers must meet the following service eligibility and agreement. Have at least 6 years of eligible service (qualifying active duty or SELRES) in the Armed Forces on the date of election and agree to serve four additional years from the date of request, regardless of the number of months transferred. Soldiers who are not eligible to commit to 4 additional years of service from the TEB request date are not eligible to transfer benefits. c. Paragraph 4-15a(2)(b) states that, Soldiers with at least 6 years of eligible service who have not yet transferred benefits and are enrolled in the Integrated Disability Evaluation System (IDES), which includes Medical Evaluation Board and Physical Evaluation Board, must be found "fit for duty" and commit to four years from the TEB request date in order to be approved for TEB. d. Paragraph 4-15b(2) states that former service members who failed to request the TEB while on qualifying active duty or assigned to the Selected Reserve (SELRES), are not eligible for Transferability Eligibility benefits. //NOTHING FOLLOWS//