IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150011496 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150011496 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 and Army National Guard records of the individual concerned be corrected to show he 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. IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150011496 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 his Post-9/11 GI Bill educational benefits to his dependents. 2. The applicant states, in effect, the Transfer of Education (TEB) provision of the Post-9/11 GI Bill was implemented in August 2009. He was not offered information or the opportunity to transfer his educational benefits to his dependents prior to his transfer to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) in December 2009. 3. The applicant provides a copy of a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 30 June 2015 (summarized above). 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 Army National Guard (ARNG) of the United States (ARNGUS) and Kansas ARNG, on 6 December 1989. He was awarded military occupational specialty 88M (Motor Transport Operator). 3. Through a series of reenlistments, he continued to serve in the ARNGUS and in the Regular Army (RA) through 9 December 2003. 4. On 10 December 2003, he enlisted in the ARNGUS and Missouri ARNG (MOARNG). He was promoted to the rank of sergeant/E-5 on 12 August 2004. 5. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty in support of Operation Joint Guard on 3 April 2008, honorably released from active duty on 26 April 2009, and transferred to the MOARNG. He had competed 1 year and 24 days of net active service this period that included 9 months and 13 days of foreign service (Kosovo). 6. On 8 December 2009, the Military Personnel Management Officer, MOARNG, Joint Force Headquarters, Jefferson City, MO, notified the applicant that he had completed the required years of qualifying Reserve service and he was eligible for retired pay upon application at age 60 (Twenty Year Letter). 7. Headquarters, MOARNG, Joint Force Headquarters, Jefferson City, MO, Orders 021-210, dated 21 January 2010, honorably discharged the applicant from the ARNG effective 9 December 2009 and transferred him to the USAR Control Group (Retired Reserve). 8. An NGB Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the MOARNG on 9 December 2009 and transferred to the USAR Control Group (Retired Reserve). He had competed 20 years and 4 days of total service for pay/retired pay. It also shows, in pertinent part, in: * item 18 (Remarks): NGB Form 22 and NGB Form 55b (Honorable Discharge from the Federally Recognized ARNG) were mailed to the individual's last known address as shown in item 19 (Mailing Address After Separation). * item 20 (Signature of Person Being Separated): "Soldier Not Available for Signature" 9. There is no evidence that the applicant completed a request to transfer educational benefits to any of his family members before leaving military service. 10. There is no evidence that the applicant's family members made a previous claim to the VA for educational benefits. 11. In connection with the processing of this case, the applicant's request was referred to the Deputy Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, VA, for review and administrative action, if appropriate. a. The NGB official advised that the applicant retired on 9 December 2009 without completing a request to transfer Post-9/11 GI Bill benefits to his dependents. b. The Post 9-11 GI Bill allows the transfer of unused benefits to those members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. c. For Soldiers eligible for retirement, the implementing guidance stated no additional service is required. As such, the applicant was eligible for TEB since he was in service and required no additional service. d. The advisory official recommends approval of the applicant's request based on the fact there is no concrete evidence the Soldier was afforded the opportunity for TEB and he met all requirements during its implementation. e. The NGB advisory opinion was coordinated with the NGB Education Services Branch. The MOARNG did not provide comments or recommendation. 12. On 18 August 2016, the applicant was provided a copy of the NGB advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. The applicant did not respond. REFERENCES: 1. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement of unused educational benefits to one or more of the specified family members. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. a. An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, does not have an adverse action flag and has completed at least: (1) 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; (2) 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD) must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred; or (3) the years of service as determined in Army regulations and established by the Secretary of the Army. b. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows: (1) to the individual's spouse; (2) to one or more of the individual's children; or (3) to a combination of the individuals identified above. c. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. 2. The Department of the Army, Department of Defense, and the VA initiated a public campaign that generated communications through military, public, and social media venues. Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009. However, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service. 3. The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA. DISCUSSION: 1. The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to transferring to the USAR Control Group (Retired Reserve). a. He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children. He had more than 20 years of service upon his retirement. b. He was serving as a member of the Selected Reserve on 1 August 2009 and his last day of active service was 9 December 2009, which was approximately 130 days after the program's implementation (i.e., 1 August 2009). c. He was eligible to transfer his educational benefits to his authorized dependents enrolled in the Defense Eligibility Enrollment Reporting System. 2. The evidence of record shows the MOARNG issued its notification to the applicant that he had completed the required years of qualifying service for Reserve retirement on 8 December 2009. a. Retirement orders were issued on 21 January 2010, with an effective date of 9 December 2009. b. The evidence of record shows the applicant was not available to sign his NGB Form 22 when it was issued to the applicant; the form was mailed to him. c. The available evidence of record supports the applicant's contention that he was not offered information concerning the requirement to transfer his educational benefits prior to leaving military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011496 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011496 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2