BOARD DATE: 25 FEBRUARY 2016 DOCKET NUMBER: AR20150006229 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 FEBRUARY 2016 DOCKET NUMBER: AR20150006229 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. ___________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. Enclosure 1 BOARD DATE: 25 FEBRUARY 2016 DOCKET NUMBER: AR20150006229 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 educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to his retirement. 2. The applicant states: * he was placed on the "Retired Reserve List" on 20 October 2009 which was within the first 90 days of the 1 August 2009 Post-9/11 GI Bill implementation date * public law for implementation of Post-9/11 GI Bill benefits makes no provisions for waiving requirements for the TEB by retirees * the Department of the Army Review Boards Agency will consider cases for Soldiers who retired within the first 90 days of implementation and he retired within that time frame * he is 60 years old and he has a master's degree * his dependents will be penalized for a benefit for which he otherwise met the requirements of the intent of the Post-9/11 GI Bill TEB * he served an additional 2 years in a Retiree Recall status since his retirement on 20 October 2009 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs letter, dated 18 February 2010 * Congressional correspondence * self-authored letter, dated 7 May 2015 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 was born on 14 June 1951. 3. Having prior honorable enlisted service in the Regular Army, U.S. Army Reserve, and a break in service, he enlisted in the U.S. Army Reserve on 23 December 1987. 4. On 16 July 2009, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 5. Records show he was transferred to the U.S. Army Reserve Retired Reserve on 20 October 2009 after completing 22 years of qualifying service for retired pay at age 60. His reassignment orders are not available for review. 6. U.S. Army Human Resources Command (HRC) Orders M-11-001003, dated 23 November 2010, ordered him to active duty in a retired status effective 5 December 2010. 7. He reached age 60 on 14 June 2011. 8. HRC Orders A-11-126325, dated 28 November 2011, recalled him to active duty from a retired status effective 5 December 2011. 9. HRC Orders C01-390075, dated 4 January 2013, placed him on the Retired List effective 5 December 2012. 10. He provided a copy of his DD Form 214 for the period ending 3 December 2012, Congressional correspondence, and a copy of his Certificate of Eligibility from the Department of Veterans Affairs for an approved program of education or training under the Post-9/11 GI Bill. 11. His records are void of and he failed to provide any documentary evidence showing he was improperly counseled or he transferred his Post-9/11 GI Bill benefits prior to his retirement on 20 October 2011 or his return to an active status on 5 December 2011 and prior to his return to a retired status on 5 December 2012. Additionally, there is no evidence indicating he followed the established procedure by submitting an application through the Defense Manpower Data Center (DMDC) web application while he was still serving on active duty. REFERENCES: 1. Department of Defense (DOD) Directive-Type Memorandum 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members. Eligible individuals include members of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the request to transfer entitlement to educational assistance under this section, are eligible for the Post-9/11 GI Bill and: a.  have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or b.  have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, are precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agree to serve for the maximum amount of time allowed by such policy or statute; or c.  are or become retirement eligible during the period 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 Component service.) For those individuals who had an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service was required. For those individuals eligible for retirement: * on or after 1 August 2009 and before 1 August 2010, 1 year of additional service was required * on or after 1 August 2010 and before 1 August 2011, 2 years of additional service was required * on or after 1 August 2011 and before 1 August 2012, 3 years of additional service was required 2. The policy further states the Secretaries of the Military Departments will provide counseling on Post-9/11 GI Bill benefits to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly. 3. During the implementation phase of the program (the 90-day period from 1 August 2009 through 31 October 2009), many Soldiers were unaware of the requirements for transferring Post-9/11 GI Bill educational benefits. The Army, DOD, and the Department of Veterans Affairs initiated a public campaign that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of benefits. 4. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. a.  The law 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. b.  A Soldier must be currently serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependents on or after 1 August 2009. c.  Changes to the amount of months allocated to family members can be made at any time, to include once the service member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation. If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 5. Title 38, U.S. Code, section 3319, prohibits service members who are no longer serving in an active status 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." 6. The DOD 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 7. Requests to transfer Post-9/11 GI Bill benefits to eligible dependents are submitted through the DMDC web application. DISCUSSION: 1. The applicant's request for correction of his records to show he elected to transfer educational benefits to his dependents under the TEB provision of the Post-9/11 GI Bill prior to his retirement was carefully considered. 2. His records are void of and he failed to provide any documentary evidence showing he was improperly counseled or he transferred his Post-9/11 GI Bill benefits prior to his transfer to the Retired Reserve on 20 October 2009 or during his return to an active status on 5 December 2011 and prior to his release from active duty and placement on the Retired List on 5 December 2012. Further, there is no evidence indicating that he followed the established procedure by submitting an application through the DMDC web application while he was still serving in an active status. 3. In the absence of evidence indicating he was unfairly deprived of the opportunity to transfer his educational benefits prior to his retirement, there is an insufficient basis upon which to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150006229 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2