IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150004401 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an exception to policy to transfer educational benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states his unit was briefed on Post-9/11 GI Bill TEB provisions at the demobilization site in Fort Bliss, Texas in August 2009; however, this briefing failed to mention that Soldiers are required to complete the transfer prior to retiring. Additionally, when he separated from his home unit in Midland, Texas the requirement to transfer this benefit prior to his retirement was not mentioned. He attempted to transfer his benefits to his eligible dependents after his retirement and was informed that he was no longer eligible. He contacted the 2nd Battalion, 142nd Infantry Brigade, his former unit in the Texas Army National Guard (TXARNG); however, his chain of command was unsuccessful in their attempt to change his benefits. He finally contacted his Member of Congress, who referred him to the Army Board for Correction of Military Records (ABCMR). 3. The applicant provides: * Orders Number 236-0029, issued by Headquarters, Fort Bliss, Texas on 24 August 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders Number 050-1014, issued by the TXARNG on 19 February 2010 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * letter from the NGB to his Member of Congress, dated 27 January 2015 * information pertaining to Post-9/11 GI Bill TEB provisions * letter from the battalion executive officer of 2nd Battalion, 142nd Infantry Regiment, dated 2 March 2015 * letter from the company Readiness Noncommissioned officer (NCO), Company C, 2nd Battalion, 142nd Infantry Brigade * letter from the former first sergeant (1SG) of Company C, 2nd Battalion, 142nd Infantry Brigade, undated CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant served in TXARNG and was assigned to Company C, 2nd Battalion, 143rd Infantry Regiment. 3. His record contains a Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 1 July 2008, which informed him he had completed the required years of service and would be eligible for retired pay upon application at age 60. 4. He entered active duty on 1 February 2008 and served in Kuwait/Iraq from 4 November 2008 to 20 August 2009. His DD Form 214 shows he was honorably released from active duty on 7 December 2009, upon the completion of his required period of active service. 5. His NGB Form 22 show he was honorably discharged from the TXARNG and transferred to the Retired Reserve on 7 February 2010, after completing a total of 21 Years, 7 months, and 14 days of service for retired pay. 6. He provided the following documents in support of his request: a. A letter the NGB issued in response to an inquiry from his Member of Congress, dated 27 January 2015. The letter stated: (1) The applicant did not complete a TEB request in the Department of Defense (DoD) TEB online database before he retired from the ARNG on 7 February 2010. (2) According to the ARNG-Human Resourses Management Branch, "the Post-9/11 GI Bill, Public Law 110-252, was enacted on 30 June 2008, with a start date of 1 August 2009. Therefore, it is possible the applicant may not have been informed about the program at the time of his return from deployment. Although significant measures were taken to disseminate the information to all Service members during the initial phases of the program, many who separated during the earlier days of the program may not have been fully aware of the requirement to transfer prior to leaving military service." b. A letter from Sergeant First Class (SFC) AJG, the company readiness NCO, dated 11 February 2015. SFC AJG stated, during the unit's 2009 demobilization in Fort Bliss, Texas, the education briefing they received from the State Education Services Office did not include any information regarding transferring education benefits. A few of the Soldiers in the unit, who were contemplating retiring during that time, were never informed they had to reenlist to transfer their education benefits. c. A letter from Lieutenant Colonel (LTC) JMW, the applicant's battalion executive officer, dated 2 March 2015. LTC JMD stated their unit returned from a deployment in Iraq at the end of August 2009, and he attended the same redeployment briefings the applicant attended. LTC JMD further stated, that while the redeployment briefings included some information pertaining to the Post-9/11 GI Bill TEB, they did not include any information on how to transfer those benefits. d. An undated letter from 1SG JST (Retired), the applicant's 1SG. 1SG JST stated the following: (1) As the senior NCO of Company C, 2nd Battalion, 142nd Infantry Regiment, it was part of his job to insure all of his Soldiers were made aware of the benefits they had earned as Title 10 Soldiers serving their country in Iraq. This included information coming down from the chain of command as well as any and all briefings prior to deployment, during the deployment, and during the demobilization process. (2) One of the things that really caught his attention was that he could transfer his federal school benefits to his children. The fact that he had two college age children and had taken a financial loss by being deployed made him believe that by providing this program his government was doing everything it could to take care of the Soldier. (3) He retired shortly after his third deployment in 2010 and was extremely frustrated when he found out he could no longer transfer the school benefits he earned. He emphatically stated that, at no time was he or his Soldiers briefed that the benefits were not transferable after retirement. This was the one program from which he would have most benefited. He would not have retired before he transferred his education benefits to his children if he had known he would be unable to do so after retirement. 7. The Department of Defense (DoD) established the criteria for eligibility and transfer of unused education benefits to eligible family members on 22 June 2009. 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; and 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; or b. Has at least 10 years of service in the Armed Forces (active duty and/or 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; or 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 duty or 20 qualifying years of reserve service. 8. After 1 August 2013, all Soldiers electing TEB incur a 4-year service remaining requirement to retain the benefit. 9. Public Law 110-252, section 3020, limits eligibility to transfer unused educational benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her family members. 10. Changes to the amount of months allocated to family members can be made at any time, to include once a service member leaves military service, provided the member allocates at least 1 month of benefits prior to separation. If the service member allocates zero months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 11. The DoD, Army, and the Department of Veterans Affairs (VA) initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. DISCUSSION AND CONCLUSIONS: 1. The applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retirement. In fact, the evidence indicates he was fully eligible when the program began on 1 August 2009. However, the evidence of record also shows he was not informed of the requirement to transfer these benefits prior to retiring. 2. The DOD, the VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues. Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits. This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling. 3. Equity and compassion should be considerations in this case. The evidence of record clearly indicates the applicant was eligible to retire on 1 August 2009, the date the Post-9/11 GI Bill TEB was implemented and there is strong evidence suggesting he was not informed of the necessity to transfer his education benefits prior to his retirement. Further, it is reasonable to presume that had he been aware of the requirement to transfer his benefits prior to his retirement, he would have done so. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members prior to his retirement, provided all other program eligibility criteria are met. ___________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. ABCMR Record of Proceedings (cont) AR20150004401 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004401 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1