BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150004914 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, in effect, an exception to policy to transfer his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states this benefit had only existed for a year prior to his retirement in 2010. He did not have full knowledge of what was needed to ensure his children would be able to use his education benefits. When his daughter became a senior, he realized that he did not have the ability to transfer the benefit. He was unaware of the rules regarding this benefit. 3. The applicant does not provide any additional evidence. 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 Army Board for Correction of Military Records (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 enlisted in the Regular Army on 24 July 1990. He held military occupational specialty 74D (Chemical Operations Specialist). He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6. 3. On 7 January 2009, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for engaging in an inappropriate behavior with a private. His punishment consisted of a reduction to sergeant (SGT)/E-5, forfeiture of pay, and extra duty and restriction. 4. He retired on 31 July 2010 by reason of sufficient service for retirement and he was placed on the retired list in his retired rank/grade of SGT/E-5 on 1 August 2010. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years and 7 days of active service. 5. An advisory opinion was received on 27 October 2015 from the Finance and Incentives Branch at the U.S. Army Human Resources Command in the processing of this case. The advisory official recommended disapproval of the applicant's request and stated: a. On 3 November 2008, the applicant received a negative flag (for adverse action). This flag was in his records up to and including his retirement date in August 2010. b. A Soldier should not be granted relief based on unawareness of the law, program, rules, or procedures unless they left service during the implementation phase (first 90 days) of the program. The Army, Department of Defense (DOD), and 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. The applicant's last day in the service was 31 July 2010 which was not within 90 days after program implementation. 6. The applicant was provided a copy of this advisory opinion on 30 November 2015 to give him an opportunity to submit a statement/rebuttal. 7. On 15 January 2016, he responded with three statements as follows: a. Self-authored statement wherein he states that the flag he received should not reflect on the 20 years of honorable service he provided to the Army. He requests the educational benefits that are remaining be granted to his dependents to further their educational endeavors. He retired from Germany where the transferring of educational benefits to dependents was not advertised to him. He does not want the misfortune of no communication about educational benefits being transferred to dependents to be a burden on his dependents. b. A statement from his daughter who states that she understands her father made some mistakes but she believes she deserves this award. She spent most of her time being involved in her community and playing sports. Although it was the plan to get a full ride scholarship to play basketball at the college level, she knew that it was going to be the academics that get her into a university whether she could play or not. She hurt her knee her junior year which caused the basketball scholarships to quickly disappear. While playing sports in high school she managed to graduate with honors and in the top 15 percent of her class earning a 4.1 grade point average. She was able to get accepted to several colleges and receive some scholarships along the way. She is currently at Arizona State University, Carey School of Business, majoring in Supply Chain Management. Next semester she will be adding a second major of Finance. She plans on getting her graduate degree in business or go on to law school. As she continues her education, it would bring her great peace of mind to know she has yet another source of financial aid available to her. She asks the Board to consider her future as well as her siblings. She asks that because he [applicant] was entitled to this benefit that the Board grant it. She thinks his mistake did not cause him to be discharged dishonorably, so it should also not be used as a reason not to give her siblings and her a benefit he was entitled to. She also would hope and believe her father did not knowingly dismiss this benefit since he has four children whom he knew would pursue higher education. c. A statement from his former spouse who states she was married to the applicant for 16 years and has four children ages 14, 16, 18, and 22. It was brought to their attention in 2012 that there was a benefit for military dependents which allowed the service member to transfer his unused education benefits to his dependents. This was after one of the children had taken his college entrance exam and was stressing over the outcome. One of friends asked "why are you so worried, your dad was in the military, you will be able to go to any school you choose." After starting their college research and scholarship homework for and speaking with the VA they later found out this benefit was not available to her children. She does not need to explain to this Board the weight that this benefit carries even if it was to help only one child. She immediately started to do her homework, calling anyone and everyone. The VA, as well as personnel offices from the Army and Air Force all informed her that the change of military record was the way to fix this. They all sounded pretty positive that it has been done before and that she would obtain a positive outcome. She told her ex-husband about her findings and told him he had to try and have this changed immediately. She has traveled many places over their years in the military and she disagrees with the advisory opinion. Information in the military is not readily available. One must inquire and search for knowledge, find programs, and hope to have a great group of leaders keeping you informed. Assumption is not the way to go in the military; you cannot just count on Soldiers seeing a flyer or catching a memo. In regards to her former husband's (the applicant) adverse actions, she is not exactly sure what happened there; they were already divorced. She will say people make mistakes, but she does not believe this should have anything to do with this decision. She is sure he was punished for his actions; he should have retired an E- 7, and he retired as an E-5. She does not think withholding benefits from his children is part of the punishment and should not be. 8. Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve. a. A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009). b. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the DEERS and be eligible for DEERS benefits. Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. e. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program. The Army, DOD, and 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. 9. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 10. Title 38, U.S. Code, section 3319, prohibits service member’s no longer on active duty from transferring educational benefits. The legislation specifically states "an individual 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." DISCUSSION AND CONCLUSIONS: The applicant served on active duty from 24 July 1990 to 31 July 2010. He does not qualify for an exception to policy to transfer the Post 9/11 GI Bill benefits to his dependents because: a. There is no evidence the applicant attempted to transfer his Post 9/11 educational benefits to his family members while he was on active duty. The requirement to so do while still on active duty is embedded in the law and a change to this law is not within the purview of this Board. b. The applicant had been on active duty since the program was implemented in August 2009. He had sufficient time to submit his application prior to his retirement in August 2010. c. The DOD, the VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. There is no evidence he exercised due diligence. d. The applicant had an adverse flag in his records which would have disqualified him from transferring the benefits. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ __X______ __X__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ 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) AR20150004914 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004914 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1