IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150005891 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 correction of his records to show he elected to transfer education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. He states he initiated the process to be transferred to the Retired Reserve and was subsequently transferred on 1 March 2010. Unknowingly, once he was transferred, he lost the ability to transfer his education benefits to his dependents. He adds his chain of command failed to communicate the important detail that the transfer had to be accomplished prior to his separation from active duty. He states he exercised his due diligence and the information was not available to him or his unit leadership who prepared him for transitioning. 3. He provides: * Self-authored Statement * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 14 August 2008 * Personnel Qualification Record (PQR) (Enlisted) * Retirement Memorandum, dated 24 January 2010 * Orders 10-043-0006, dated 12 February 2010 * DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 24 November 2009 * DA Forms 4856 (Developmental Counseling Form), dated 10 December 2009 and 2 February 2010 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. After having prior service in the Regular Army. On 14 December 1991, the applicant enlisted in the U.S. Army Reserve. He served in Kuwait and Iraq from 15 April 2003 to 16 April 2004. 3. On 14 August 2008, the U.S. Army Human Resources Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 4. On 1 March 2010, he was transferred to the Retired Reserve. His DA Form 5016 (Chronological Statement of Retirement Points) show he completed 21 years, 10 months, and 12 days of qualifying service for Reserve retirement. 5. A review of his records reveal no evidence and he does not provide evidence that shows he was transferred, or attempted to transfer, his education benefits to his dependents in accordance with the TEB provision of the Post-9/11 GI Bill. 6. An advisory opinion was obtained from the Chief, Finance and Incentives Team, U.S. Army Human Resources Command, Fort Knox, KY, dated 22 June 2015. The advisory official recommended disapproval of the applicant's request. The official stated that Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, Public Law 110-252, section 3020, limits eligibility to transfer unused 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. Based on the details below, the official did not recommend administrative relief for the applicant since he did not provide evidence showing he attempted to transfer his benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits. He stated that he was aware of the program, but did not submit a request while in the Selected Reserve. Additionally the advisory opinion states: a. A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to dependents (on or after 1 August 2009). The applicant's last day in service was 28 February 2010. He would have been eligible to transfer the benefit if he transferred before he left the service. b. A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. The applicant had more than 20 years of service upon his retirement, so he was eligible to transfer to either spouse or child (if he completed the request before leaving military service). c. A Soldier may only transfer to eligible dependents. To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible dependent status upon turning age 21, or at marriage. Eligible dependent 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 benefit. Once the benefits are transferred, children may use the benefit up to the age of 26. The online database shows the applicant had two eligible dependents enrolled in DEERS: spouse and one child. The applicant did not complete the requirement to transfer his benefits prior to leaving service. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. If he transferred education benefits prior to leaving military service he would not have incurred a service obligation since he had more than 20 years of service as of 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. There is no evidence of an adverse action in the applicant's record. He received an honorable discharge. f. 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 (DOD), and the Department of Veterans Affairs (VA) initiated a massive 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. The applicant's last day in service was 28 February 2010, which was not within the 90 days after the program's implementation. g. A Soldier must initially request to transfer benefits on the DOD's TEB online database. The TEB online database was operational on 29 June 2009. Once approved in the TEB online database by the Soldier’s service, the approval information is automatically relayed for VA access. The respective dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to use the benefits. The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken. h. Changes to the number of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least 1 month of benefits prior to separation. If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits. The TEB website shows no action was taken by the applicant to transfer any benefits. i. The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received. The applicant provided no evidence to show that his dependents made a previous claim to the VA. 7. On 9 August 2015, the applicant responded to the advisory opinion. He reiterated his claim that his chain of command failed to notify him that he was eligible to transfer his benefits to his dependents. Additionally, he argues that the Army, DOD, and VA had full knowledge well beyond the implementation phase of the program that service members were still unaware of the program procedures. He provides a request for Reserve Component assignment or attachment, two counseling forms, and his PQR in an effort to show he was never counseled on the TEB. 8. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of the individual’s 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 service or 20 qualifying years of Reserve service. 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 service pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so. The program was implemented in July 2009. The applicant retired on 1 March 2010. 2. There is no evidence and he did not provide any evidence which shows he attempted to transfer his educational benefits to his dependents prior to separation. Notwithstanding his sincerity, DOD, the VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. While there may have been some confusion during the early stages after the implementation, he retired over 7 months after the program was implemented. Therefore, this information would have been available to the applicant prior to the effective date of his retirement. 3. The requirement to transfer education benefit while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. Since there is no evidence that shows the applicant attempted to transfer his educational benefit while in an active status, as required by law, there appears to be an insufficient evidentiary basis for granting the requested relief. 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) AR20150005891 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005891 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1