ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 3 June 2021 DOCKET NUMBER:  AR20210005848 
APPLICANT REQUESTS: 
. to Transfer Education Benefits (TEB) under the Post 9/11 G.I. Bill to his dependent child 
. a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
Self-authored letter 

. 
DA Form 4037 (Officer Record Brief (ORB)) 

. 
DA Form 268 (Report to Suspend Favorable Actions (FLAG)), dated 26 July 2011 

. 
DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 October 2011 

. 
Email Communication dated 22 October 2019 


FACTS: 
1. 
The applicant states that he first learned that the pre-retirement request for TEB had not been accomplished due to a false representation of a suspense of favorable action flag. He contests that this request was delayed since he was first notified. He adds that there are 10 remaining months of Post 9/11 G.I. Bill benefits that he is currently requesting to be transferred to his dependent son. The applicant further provides that email communication would indicate that the transfer did not occur due to the absence of an ORB within his Official Military Personnel File (OMPF) and on 26 May 2010 his records erroneously indicated that he was flagged. He contests that the 251-pages worth of redacted information that he received from the U.S. Army Human Resources Command (HRC) was void of a DA Form 268; the 848-pages received related to Docket Number AR20110013213 was also void of a DA Form 268. The applicant states that the source documentation related to any flagging action has never been provided nor appropriately distributed. Therefore, there was no way for him to know that his TEB was in jeopardy. 

2. 
A review of the applicant's available service records reflects the following: 


a. 
On 25 April 1980, the applicant was appointed a commission within the Regular Army. 

b. 
On 30 September 1992, the applicant was released from active duty under the Fiscal Year (FY) 1992 Officer Early Transition Program and transferred into the U.S. Army Reserve (USAR) Control Group (Reinforcement). 

c. 
On 2 February 2001, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter). 

d. On 8 January 2002, the applicant was ordered to active duty. 

e. 
On 22 March 2010, the applicant was arrested for suspicion of the sexual assault of a minor child. 

f. On or about 26 March 2010, the applicant was released from jail. 

g. 
On 30 March 2010, Lieutenant Colonel (LTC) K_ issued a military protective order prohibiting the applicant from coming within 300 feet of his spouse and other minor children in the household. The applicant violated this order on 7 April 2010. 

h. 
On 5 August 2010, the Senior Commander, 1st Cavalry Division, advised the applicant of the initiation of an elimination action. The applicant was required to show cause for retention on active duty. The published Memorandum – Subject: Initiation of Elimination, item 3 provides that "in conjunction with this action, a DA Form 268 had been initiated." The applicant acknowledged receipt of this notification on 10 August 2010. The applicant's available personnel records are void of the referenced DA Form 268. 

i. 
On 21 July 2011, the Army Grade Determination Review Board reviewed the applicants request for Retirement in Lieu of Elimination based on misconduct and moral or professional dereliction (Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b)) and derogatory information (AR 600-8-24, paragraph 4­2c). The Board disapproved his request for placement on the temporary disability retired list and approved his retirement in lieu of elimination. The Deputy Assistant Secretary of the Army Review Boards directed that he would be placed on the retired list in the rank of Major (MAJ) / O-4. 

j. 
On 26 July 2011, the applicant's flag was removed citing disciplinary action had been taken. 

k. 
On 15 August 2011, HRC notified the applicant of the Boards decision and further advised that he would be retired on 31 October 2011. 

l. 
On 31 October 2011, the applicant was retired from active duty under the provisions of AR 600-8-24, paragraphs 4-2b and 6-17 for unacceptable conduct. DD Form 214, item 29 (Dates of Time Lost During this Period) reflects 14 June 2011 – 31 October 2011 under Title 10 United States Code (USC), section 972 (Members: Effect of Time Lost). This document further provides that the applicant had completed 9 years, 5 months, and 6 days of net active service this period, and 15 years, 7 months, and 26 days’ total prior active service with 10 years,1 month, and 27 days of prior inactive service. The applicant was placed on the retired list effective 1 November 2011 at the rank of MAJ. 


3. The applicant provides the following: 
a. 
DA Form 4037 (ORB), dated 25 May 2011, reflective of the applicant's pertinent personnel information to include assignment history, promotions, evaluation history, military/civilian education etc. This document is void of information pertaining to a flagging action. 

b. 
DA Form 4037 (ORB), dated 3 June 2011, reflective of the applicant's pertinent personnel information to include assignment history, promotions, evaluation history, military/civilian education etc. This document is void of information pertaining to a flagging action. 

c. 
DA Form 268, dated 26 July 2011, reflective of the applicant's commander directing that the applicant's flag be removed effective 26 July 2011. 

d. 
Email communication, dated 22 October 2019, reflective of the outcome of an audit conducted on the applicant's records. The HRC, Chief, Education Incentives Branch advised that the applicant's submitted request for TEB on 27 May 2010 was rejected. The communication further provides that his Interactive Personnel Electronic Records Management System (iPERMS) record did not contain an ORB to verify if a flag was present. As such, the applicant was advised to seek relief through this Board. 


4. On 24 October 2019, Ms. E_, HRC, Team Lead, Education and Incentives Branch 
(G.I. 
Bill and Loan Repayment Program) responded to the applicant by email and stated: 

a. 
"You initially contacted this office on 26 September 2019 requesting information as to why the Post 9/11 GI Bill TEB you submitted on 26 May 2010 had been rejected for "Disapproved – Service Member needs to contact Service Representative to resolve status" on 28 May 2010. 

b. Given the time lapse of nine years, this office: 
. 
Researched your Army Military Human Resource Record (AMHRR) and found DD Form 214 with a retirement effective 31 October 2011 

. 
Block 28 (Narrative Reason for Separation) "Unacceptable Conduct" 

. 
Block 29 (Dates of Time Lost During this Period) Under Title 10, USC, section 972: 14 June 2011-31 October 2011 



c. 
Requested an electronic Military Personnel Office (eMILPO) record audit given the above derogatory information. The eMILPO audit revealed you had an adverse action flag on the TEB request date of 26 May 2010; therefore, the TEB request was correctly rejected per Army Post 9/11 GI Bill Policy Memorandum (dated 10 July 2009), paragraph 17a(1). 


BOARD DISCUSSION: 
1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, and HRC, Chief, Education Incentives Branch advisory the Board found there was sufficient evidence showing the adverse action 
(FLAG) had been lifted 90 days prior to the applicant’s retirement and the record also 
showed he tried to transfer his Post 9/11 GI Bill but was unable to do so. Based on this the Board determined relief was warranted and granted relief to transfer his Education Benefits (TEB) under the Post 9/11 G.I. Bill to his dependent child. 
2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 
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 dependent child after the FLAG was removed and prior to his retirement in 2011, and; that his application was accepted and processed by the appropriate authority. 
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. Memorandum – Subject: Post 9/11 G.I. Bill Implementation Policy provides guidance pertaining to the implementation of the Post 9/11 G.I. Bill in order to enhance the Army’s 
recruiting and retention programs. Paragraph 17a.(1) provides that 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 G.I. Bill. 
2. Army Regulation 621-202 (Army Educational Incentives and Entitlements) provides policy concerning educational incentives and entitlements authorized by public law. Paragraph 4-15 (Transferability of unused benefits to dependents) provides that Soldiers must meet all of the criteria in order to transfer unused Post 9/11 G.I. Bill education benefits to their eligible dependents. Soldiers must be eligible for Post-9/11 
G.I. Bill benefits and not be serving under a suspension of favorable personnel actions in accordance with AR 600–8–2 (Suspension of Favorable Personnel Actions (FLAG)), at the time of the Soldier’s request to transfer education benefits. A flag is an action that 
would prevent a Soldier from being promoted or retained in the service. 
3. AR 600–8–2 (Suspension of Favorable Personnel Actions (FLAG)) provides that the suspension of favorable actions on a Soldier is mandatory when military or civilian authorities initiate any investigation or inquiry that may potentially result in disciplinary 
action, financial loss, or other loss to the Soldier’s rank, pay, or privileges. 
Commanders, general officer staff heads, and heads of Headquarters Department of the Army staff agencies (to include the Department of the Army Suitability Evaluation Board) must ensure that favorable personnel actions are suspended in accordance with the criteria contained in this regulation. Paragraph 2-2 (Circumstances requiring a nontransferable Flag) provides that Commanders must flag Soldiers titled as possible subjects or suspects by the U.S. Army Criminal Investigation Command (USACIDC) (or Service equivalent), military police, or civilian law enforcement during the course of an investigation. Effective date of the flag is the date of offense or the date law enforcement identifies or titles the Soldier as a subject or suspect. Paragraph 2-10 (Records Management) provides that units will maintain a copy of the DA Form 268 within their unit for 1 year on all Soldiers who separate, retire or are discharged while flagged. The DA Form 268 will not be filed in the AMHRR except as allied document to disciplinary, separation or other actions. 
4. 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//