IN THE CASE OF: BOARD DATE: 26 October 2015 DOCKET NUMBER: AR20150007545 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 dependent spouse under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states on 4 August 2009, at approximately 1400 hours, in the presence of the State Personnel Officer, he got on the Department of Defense (DOD) website and transferred his earned educational benefits to his wife and three children. He used his user name and password to do so. It was a very easy process and he was able to complete it with no trouble. He still has the notes where his meeting was scheduled for 29 July 2009 but was rescheduled to 4 August 2009 due to conflict change. In his civilian job, he is the Director of the Missouri Veterans Commission. He and his staff work directly with veterans every day to ensure they apply for State and federal benefits. He knows the importance of properly and expeditiously completing the paperwork. Last August, he attempted to use the benefits for his son, but he was told the benefits had not been transferred. On 19 November 2014, he received an email informing him that the benefits were not approved for a transfer. There is no omission or mistake on his part that would have prevented him from receiving those earned benefits. 3. The applicant provides: * Letter to the Board * Notes from meeting with the State Personnel Officer * Email, dated 19 November 2014, from Mr. SN 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's records show he was born in June 1961. He was appointed as a Reserve commissioned officer of the Army on 17 May 1981. He served with the Missouri Army National Guard (MOAARNG) in a variety of assignments and he was promoted to brigadier general (BG) in January 2006. 3. On 16 May 2000, the MOARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 4. He entered active duty on 29 February 2008 and subsequently served in Kosovo from 18 June 2008 to 8 March 2009. He was honorably released from active duty on 23 April 2009 and he was transferred back to State ARNG control. 5. He was separated from the ARNG and transferred to the Retired Reserve on 30 September 2010 by authority of MOARNG Orders 194-252. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was credited with over 31 years of total service for pay. 6. The NGB reviewed the TEB website and determined no record exists to show he submitted a transfer of his Post 9/11 GI Bill benefits to his family member(s) before he retired in September 2010. However, he provides: a. Hand-written notes with the words "GI Bill, transfer, DOD site, and the name/dates of birth of his wife and three children." The notes also have the entry "meet with Chief Warrant Officer P--- 29 July 2009 and an arrow drawn to the date 4 August 2009." b. An email, dated 19 November 2014, from Mr. SC, to the applicant that states the Education Office reviewed his records and the Department of the Army does not indicate that they approved him for the transfer of entitlements to his dependents. 7. An advisory opinion was received from the NGB on 16 July 2015 in the processing of this case. An NGB official recommended disapproval of the applicant's request. The official stated: a. The NGB could not find any historical records to support a claim by the applicant that he transferred all benefits to otherwise qualified family members using the Education Benefits website. 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 members of the Selected Reserve. b. On 22 June 2009, DOD established the criteria for eligibility to transfer unused education benefits to family members. The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of approval of the individual's request to transfer entitlements to educational assistance under this section is eligible for the Post 9/11 GI Bill. c. Between 1 August 2009 and 1 August 2013, special provisions were made in Directive Type Memorandum (DTM) 09-003 (Post 9/11 GI Bill) and DOD Instructions 1341-13 to reduce or eliminate the 4-year service obligations for members who were or would become retirement eligible between 1 August 2009 and 1 August 2013. The applicant was retirement eligible on 1 August 2009. He would have been eligible to transfer his education benefits without being required to complete service obligations. He retired on 30 September 2010. d. On 4 January 2011, the Post 9/11 Veterans Educational Improvement Act of 2010 was signed into law (Public Law 111-377). The law expanded the definition of active duty to include specific Title 32 Soldiers. Due to a special provision for those who have left service since 1 August 2009, the applicant was eligible to transfer his benefits to his dependents. e. The State has not rendered any recommendation at this time. Additionally, the NGB Education Services concurs with this recommendation and the ARNG General Officer Management Office deferred this opinion to the Office of the Deputy Chief, Personnel Policy Division. 8. The applicant responded to the advisory opinion on 17 August 2015. He submitted a rebuttal together with a recommendation from the State of Missouri and 4 witness statements as well as his notes of 4 August 2009. He contends that he was the first guardsman from the State of Missouri to complete the transfer on the DOD website. a. A memorandum, dated 14 August 2015, from The Adjutant General, MOARNG. He states the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) should be amended to reflect the transfer of educational benefits to his wife and children. After an extensive staff review, there is no doubt that the applicant accomplished this transfer as allowed by Public Law 110-252. Although the DOD website does not reflect the transfer, systems were not in place at the time to track those who accessed the "MyPay" and the DOD educational website. The witness statements and the applicant's notes are evidence that he accomplished the transfer. He recommends the applicant's DD Form 214 be corrected to reflect the transfer. b. A statement, dated 10 August 2015, from Mr. AB, Military Executive, Missouri National Guard. He states that he serves as the Military Executive for The Adjutant General for the State of Missouri. When the applicant served as Assistant Adjutant General - Maneuver, he had regular contact with the applicant. He remembers talking to the applicant in the summer of 2009 about a new benefit which would allow current service members to transfer their GI Bill to their dependents. Both the National Guard and the Missouri Veterans Commission worked together to get the word out to an individual who had deployed and was on active or drilling guard status. He remembers the applicant telling him that he had just accomplished the transfer using the DOD website. This sticks in his mind because he told him that he was probably the first from the State to sign up since it was new. He remembers the applicant telling him how simple it was and that the member needed the social security numbers of all their family members. The applicant not only accomplished the transfer of benefits, he also encouraged others to do so as well. He also worked with Veterans Service Officers around the State to spread the word of this new benefit. c. A statement, dated 4 August 2015, from Ms. JT who serves as the applicant's Executive Assistant at the Missouri Veteran's Commission. She remembers in the summer of 2009 the applicant discussed transferring his educational benefits he had accrued from his deployment to Kosovo to his wife and children. She remembers he went to the MOARNG headquarters to use one of the computers that read his ID card, which they did not have in their office. She knows the applicant met several times with their Veterans Services Officer to ensure he had all the information to transfer his educational benefits. When she later asked him how the transfer went, he said the Veterans Service Officers were the best and that he had given them everything. d. A statement, dated 29 July 2015, from Mr. MSJ, a Transition Assistance Advisor with the MOARNG. He states that he was with the Missouri Veterans Commission from August 2008 to February 2014. He was the applicant's Veterans Service Officer upon his return from Kosovo. He supports the applicant's claim that he transferred the benefits. Upon their return from Kosovo, he conducted a thorough review of the applicant's benefits in or around June 2009. He remembers this clearly because the applicant was the Director of the Missouri Veterans Commission and also a general officer in the MOARNG. When they discussed benefits, the applicant told him he wanted to transfer the benefits to his wife and children. The program was just rolling out and he told the applicant he needed copies of his family members' social security cards, birth certificates, and his marriage license. He took a couple of weeks to bring those. Sometime in July 2009, the applicant told him that he was going to headquarters to have some foreign awards added and to transfer his educational benefits. He remembers this because he had to sit down with him with a copy of the social security numbers. They laughed that he had to come back to get the requested information. He also remembers talking to the applicant after his August 2009 drill weekend and asked him about signing up for educational benefits. He told him that it was easy. He accomplished the transfer a full 14 months before he retired. He (the author) is certain that the applicant transferred the benefits to his wife and children in late July or early August 2009. He showed him the notes he kept during that meeting and he believes those were the same notes that he transcribed in the office prior to signing up for the transfer of benefits. e. A statement, dated 3 August 2015, from Mr. GSH, a Veterans Service Officer in Jefferson City, MO, Office of the Missouri Veterans Commission where the applicant worked. He states that they discussed benefits on numerous occasions and he remembers specifically asking the applicant if he had exercised the GI Bill and the applicant told him he planned to transfer the benefit to his children. He (the author) told him that his wife might also be eligible and recommended that he include her as well. This occurred in the summer of 2009 when they returned from Kosovo. He and the applicant later discussed how simple it was to transfer the benefits on the DOD website. He has no doubt that the applicant transferred the benefit as they discussed and he supports his claim to annotate his DD Form 214 to include the transfer of educational benefits without reservation. 9. A second advisory opinion was received from the NGB on 6 October 2015 in light of the additional evidence provided by the applicant in response to the first advisory opinion. An NGB official recommended approval and stated: a. The applicant states he transferred his Post 9/11 GI Bill benefits to his dependent(s). 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. On 22 June 2009, 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. b. Between 1 August 2009 and 1 August 2013, special provisions were made in DTM 09-003 and DODI 1341.13 to reduce or eliminate the 4-year service obligation for service members who were or would become retirement eligible between 1 August 2009 and 1 August 2012. Since [Applicant] was retirement eligible on 1 August 2009, he would have been eligible to transfer his education benefits without being required to complete a service obligation. He retired on 30 September 2010. c. On 4 January 2011, the Post 9/11 Veterans Educational Improvements Act of 2010 was signed into law (Public Law 111-377). This law expands the definition of Active Duty to include specific Title 32 service. Due to a special provision for those who have left the service since 1 August 2009, [Applicant] was eligible to transfer his benefits to his dependents. d. The State of Missouri concurs with this recommendation. In support of this recommendation, key personnel provided very vivid and detailed accounts that [Applicant] indeed went through the web-based process. e. The NGB Education Services reviewed this case and cannot find any historical record to support [Applicant] in a letter dated 22 January 2015, that he transferred all benefits to otherwise qualified family members, using the Education Benefits website. 10. The applicant was provided a copy of this advisory opinion on 6 October 2015. He concurred on the same date. 11. Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits 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 on or after 1 August 2009: 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). The applicant's last day in military service was 30 September 2010. He would have been eligible to transfer the benefits if he had transferred them before he left military service. 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. The applicant in this case had more than 20 years of service upon his retirement, so he was eligible to transfer the benefit (if he had 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 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 the 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 also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. If the applicant had transferred his benefits prior to leaving military service he would not have incurred an additional service obligation. 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 he or she left the service during the implementation phase (first 90 days) of the program. The Army, 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 30 September 2010 which was not within 90 days after the program's implementation. g. A Soldier must initially request to transfer benefits on the DOD TEB online database. The TEB online database was operational 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 educational benefits, VA Form 22-1990e, to request to use the benefits. There is no evidence the applicant took the required steps to transfer the benefits. h. Changes to the amount of months allocated to dependents can be made at anytime, to include once a 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. The TEB website shows no action was taken by the applicant to transfer any benefits. 12. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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 duty or 20 qualifying years of Reserve service. 13. 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. 14. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012. 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 there is no evidence to confirm he did so. The program was implemented in July 2009. The applicant retired on 30 September 2010. Despite the strong statements provided by the applicant, and notwithstanding those statements, there is insufficient evidence that prior to his retirement, he applied for the transfer of benefits while on active duty or in the Selected Reserve. 2. 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. A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent. 3. During the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit. 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. 4. Here, the applicant served nearly 14 months after this program was implemented, until 30 September 2010 when he retired. There is no evidence he took all the necessary steps to ensure the transfer to his dependents or that the transfer was completed and confirmed during the period he was eligible for the transfer, prior to leaving active or Reserve military service. 5. In support of his request, the applicant provided statements from key personnel who provided vivid and detailed accounts that the applicant indeed went through the web-based process. The State of Missouri supports his request. However, the NGB Education Services reviewed this case and could not find any historical record to confirm that he transferred all benefits to otherwise qualified family members, using the Education Benefits website. 6. The law requires a member to be on active duty or in the Selected Reserve at the time he/she requests the transfer. A change to this law is not within the purview of this Board. Notwithstanding the witness statements provided by the applicant, there remains insufficient evidence to show he transferred the benefits to his qualified family members while he was in the Selected Reserve. There is insufficient evidence to support granting him the requested relief. BOARD VOTE: ___x___ ____x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined that the evidence in this case supports a recommendation for relief. The applicant provided compelling evidence indicating he did, in fact, attempt to transfer his Post-9/11 GI Bill education benefits in a timely manner. The fact that he was eligible for this benefit is not in question. As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by showing he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his designated dependent(s) prior to his transfer to the Retired Reserve, 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) AR20150007545 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007545 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1