IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150018110 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 IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150018110 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. IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150018110 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 Post-9/11 GI Bill education benefits to his dependents. 2. The applicant states: a. He missed the initial suspense to transfer his education benefits to his dependents prior to his 30 November 2015 retirement date through no fault of his own. He was not informed of the requirement to transfer his benefits until after the 31 July 2013 deadline which was also within 4 years of his mandatory removal date (MRD). He retired on 30 November 2015 as a result of a colonels selective early retirement board (SERB) having served 28 years and 6 months. He had no desire to earn another graduate degree and he always intended to transfer his Post-9/11 GI Bill benefits to his dependents before his retirement. b. His children are still young (ages 10 and 13) and there was no reason, as far as he knew, to complete the transfer action prior to that time. Unfortunately, he was not made aware until 1 August 2013 of the requirement to transfer the GI Bill benefits to dependents no later than 31 July 2013. He is not entirely sure why he was completely unaware of this requirement until after the deadline. Nonetheless, he hopes his explanation and attached timeline provide some context to assist with an informed decision. c. At each of the Post-9/11 GI Bill major announcements, he was either in the process of a permanent change of station (PCS), assigned to a table of distribution and allowances (TDA) organization with little or no organic administrative support, or working with the National Security Agency (NSA). Throughout this time, communication with his supporting Army chain of command was routinely conducted by unsecure email. Unfortunately, it was always challenging to establish access to Army enterprise email on his NSA unclassified computer. Once established, it was often unreliable and information technology (IT) professionals were usually unable to determine the cause. d. On or about June 2013, leading up to the 31 July 2013 suspense date, he finally established initial access to Army webmail at his NSA location on Fort Meade. On 1 August 2013, after returning from temporary duty (TDY) in Colorado, he accessed the Army webmail and read an email from his platoon sergeant, dated 22 July 2013, with the subject: Final reminder on transfer of education benefits (TEB). He read through the entire email chain that originated with the Garrison Command Sergeant Major (CSM). The CSM's email explained the TEB requirements and cautioned that some Soldiers that were retirement eligible may not even have 4 years remaining service given their MRD. This was the first time he was ever informed of the 31 July 2013 deadline to transfer his educational benefits to dependents and he had already missed the suspense. e. On 1 August 2013, he attempted to transfer his benefits via the designated website (MilConnect) hoping there was still a chance he could meet the requirement given that he was within 12 hours of the deadline. He didn't receive confirmation of his request because of issues with the website. After several telephone calls (to the Department of Veterans Affairs (VA) and U.S. Army Human Resources Command (HRC)) he was referred to a gentleman at the Pentagon who informed him that he missed the deadline and would not be able to transfer his benefits without incurring a 4-year active duty service obligation. (His MRD was within the 4-year active duty service obligation which confirmed the Garrison CSM's instructional email.) The same gentleman advised him to send an email declining the TEB given his circumstances and suggested he submit an appeal through the Army Review Boards Agency. The gentleman stated, off the record, that his request would not be approved because the Army was taking a hard line on this matter. f. At the time he did not submit an appeal given the gentleman's comment. Since then, several peers and leaders agreed that his situation seems like an injustice and encouraged him to pursue an appeal. In fact, several of these peers had similar experiences. If necessary, he could request they provide statements supporting this claim. He thinks most Soldiers would agree that the Army generally does a very good job directly informing them of important events, concerns, and conducts surveys, especially the latter. He is not sure the Army can claim a similar level of effort as it applies to the 31 July 2013 deadline to transfer GI Bill benefits. g. His Army chain of command notified him via email of the TEB requirement on a Friday afternoon and 9 days before the deadline during which he was TDY. A number of Soldiers addressed on the email should have been contacted directly given their total time in service (TIS) and MRDs. After contacting his platoon sergeant, the platoon sergeant told him that this was also the first he had heard of the requirement. h. He believes his TIS met the overall intent of the active duty service obligations. One of the stated goals of the GI Bill program is to increase the amount of time a service member must serve before they can transfer their benefits to dependents. Serving over 28 years on active duty must fall within the "spirit" of the active duty service obligation requirement. Otherwise, preventing the transfer of those benefits to Soldiers that did not meet the 31 July 2013 suspense for whatever reason and were unable to incur a 4 year active duty service obligation due to statutory MRDs seems unnecessarily punitive. Moreover, in his opinion 28 years of service exceeds all current and most likely future service commitments in order to transfer GI Bill benefits to dependents. i. Lastly, he believes his action on 1 August 2013 to transfer benefits once he was aware of the requirement validates his intent to transfer. It was very easy to execute if he had known prior to the deadline. To the very best of his knowledge he was never aware of the requirement to transfer his education benefits until the day after the 31 July 2013 deadline. Neither the Army nor his chain of command informed him of the requirement of the TEB in sufficient time to meet the suspense. 3. The applicant provides copies of three emails between himself and his CSM, and a timeline of events. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed in the U.S. Army Reserve on 16 May 1987 and entered active duty on 27 May 1987. 2. He provides copies of three emails: a. 19 July 2013 – from a CSM to a list of addressees of the final reminder to put out to his senior personnel (enlisted and officers), who had served over 20 years active federal service, who planned to enroll their dependents in the Post-9/11 GI Bill to gain ability to TEB, they needed to do so prior to 1 August 2013 or they would incur a 4-year service obligation. b. 22 July 2013 – from a first sergeant advising the applicant and several officers of the final reminder to TEB to dependents prior to 1 August 2013 without incurring an active duty service obligation. c. 2 August 2013 – from HRC notifying him of instructions, per his request, for cancelling his TEB request executed on 1 August 2013 and stating his reason for the cancellation. 3. He served continuously on active duty until he retired on 30 November 2015. He attained the rank of colonel and served 28 years, 6 months, and 4 days of total active service. 4. In an advisory opinion, dated 8 February 2016, the Section Chief, Finance and Incentives Branch, AHRC, recommended denial of the applicant's request. The HRC official stated: a. Pubic Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. HRC did not recommend relief for the applicant because he had two different opportunities to transfer his benefits to his dependents: (1) He requested a TEB on 1 August 2013, but on 2 August 2013 he contacted the HRC GI Bill Team requesting his TEB request be rejected because he didn't want to incur a TEB service obligation; and (2) He could have requested a TEB prior to his consideration and selection by the Fiscal Year 2015 (FY15) SERB. Prior to his TEB request on 1 August 2013, the applicant had 4 years to learn about the TEB service obligation. The applicant did not submit a TEB request before selection by the FY15 SERB selection approval date of 2 February 2015. b. The Post-9/11 GI Bill is a service member's benefit; however, TEB was an incentive requiring service calculated from the TEB request date. It is always the service member's responsibility to know their TEB service obligation. To transfer the Post-9/11 GI Bill to dependents, an individual must be on active duty or in the Selected Reserve on or after 1 August 2009, have at least 6 years in an active duty status, have no current negative action flag, commit to the service obligation, and transfer benefits to dependents through the TEB website. All benefits must be transferred before the service member separated or retired. Public Law makes no provisions for waiving that requirement. c. Within both the Department of Defense (DoD) Instruction Number 1341.13 (Post-9/11 GI Bill) (dated 22 June 2009, 10 September 2010, and 31 May 2013), Enclosure 3, paragraph 3a(3) and Department of the Army (DA) Post-9/11 GI Bill Policy Memorandum (dated 20 July 2009), paragraph 17a(4) are the service obligations for Soldiers with 17 or more years of service as of 1 August 2009. The DA Post-9/11 GI Bill Policy Memorandum, paragraph 17a(4)(g) , paragraph 17a(4) would expire 1 August 2013. Therefore, any Soldier eligible under 17a(4) had to transfer education benefits prior to 1 August 2013 to be eligible for the reduced 0-3 year service obligations. If the applicant had requested a TEB prior to 1 August 2013, he would not have incurred a service obligation from the TEB request date because he had at least 20 years of service as of 1 August 2009. The applicant requested a TEB on 1 August 2013 and HRC rejected his request on 7 August 2013 as he had requested it on 2 August 2013 due to not wanting to incur a service obligation. d. The DA Post-9/11 GI Bill Policy Memorandum was available to the applicant for 4 years before the 1 August 2013 expiration of the 0-3 year service obligation. The DA and HRC made numerous efforts in 2013 to publicize the upcoming expiration of any reduced service obligation (less than 4 years) effective 1 August 2013. The efforts included: (1) Publication of Military Personnel (MILPER) Message Number 13-102 to all units on 15 April 2012 and available through Army Knowledge Online (AKO) to all personnel. (2) A statement on the May 2013 and/or June 2013 Leave and Earnings Statements stated "All Soldiers who submit a request on/after 1 August 2013 to transfer Post-9/11 GI Bill benefits to eligible dependents will incur a 4-year military service obligation." (3) Encouragement for all commanders and education centers to publicize the facts of the program on their installations. e. The applicant stated he always intended to request a TEB to his dependents before retirement. He stated his children were ages 10 and 13, so he saw no need to transfer at that time. Soldiers who wait to transfer when their children are graduating from high school or during the retirement process find they are no longer eligible for a TEB because they will incur a TEB service obligation and the approved retirement date would no longer allow the Soldier to fulfill the TEB service obligation. When a Soldier was selected for involuntary retirement such as the SERB, the Soldier must have had an approved TEB request prior to SERB selection (release of the board). Having the approved TEB before SERB selection allowed program managers the ability to adjust the TEB service obligation to the SERB selection approval date. When a Soldier did not have an approved TEB and was selected for SERB, the U.S. Army viewed this as the Soldier no longer having the capability to commit to the required 4-year TEB service obligation. f. The Army Board for Correction of Military Records (ABCMR) provided an exception for Soldiers who were deployed on contingency orders during the MILPER Message 13-102 publication, only. The applicant was not deployed on contingency orders during its publication. The applicant stated he did not have access to Enterprise Email and was on TDY orders (not on contingency orders). However, through the preceding 4-years it is presumed he had sufficient access to AKO email and other official email access generally available to all military personnel. g. The applicant stated during major announcements for the Post-9/11 GI Bill, he was either in the process of a PCS, on joint assignment with the NSA, or out of the normal Army channels. However, he had time to research the TEB requirements during that 4-year timeframe. It was noted the applicant stated earlier that he had no intention of transferring before 1 August 2013 because his children were only 10 and 13 years old. h. The applicant could have requested a TEB following the initial TEB rejection in August 2013 and prior to his subsequent selection by the FY15 SERB on 2 February 2015. Prior to selection, officers were required to receive counseling for the FY15 SERB process and were directly advised of GI Bill actions in the FY15 SERB MILPER Message 14-205, paragraph 6. Officers considered for early separation by boards, such as the SERB, must request a TEB and have an approved TEB before the early separation board's selection release date. If the applicant had not requested rejection of his TEB submitted before the FY15 SERB selection approved release date of 2 February 2015, he would have incurred a 4-year TEB service obligation which that office would have later adjusted to his FY15 SERB selection approved release date of 2 February 2015 showing a fulfillment of the TEB service obligation. The applicant requested a TEB on 1 August 2013 and that office rejected his TEB request on 7 August 2013 per his request. During the FY15 SERB consideration timeframe, the applicant could have requested a TEB again as long as he did so before the FY15 SERB selection approval release date of 2 February 2015. The applicant never requested a TEB again. i. Available to the applicant during the 5 years before the FY15 SERB selection were the Defense Directive Type Memorandum (DTM) 09-003: Post-9/11 GI Bill, dated, 22 June 2009, the U.S. Army Post-9/11 GI Bill Policy Memorandum, dated 10 July 2009, and counseling opportunities at the various Army installation Education Centers. Information provided before and after the release of the implementation instructions were highly publicized. The VA website, MILPER Messages, and many news articles were released regarding eligibility for the Post-9/11 GI Bill and the TEB prior to the applicant's FY15 SERB selection. Specific references from the DTM and the DA Post-9/11 GI Bill Policy Memorandum are: (1) DTM 09-003, Attachment 2, paragraph 3f, "Designation of Transferee. An individual transferring an entitlement to educational assistance under that section shall, through notification to the Secretary of the Military Department concerned, as specified in paragraph 3i of that attachment: Designate the dependent or dependents to whom such entitlement was being transferred." (2) DTM 09-003, Attachment 2, paragraph 3i, "Procedures. All requests and transactions for individuals who remained in the Armed Forces would be completed through the TEB website." (3) U.S. Army Post-9/11 GI Bill Policy Memorandum, paragraph 17d(1), "Time for Transfer." A Soldier approved to transfer entitlement to educational assistance under the section could transfer such entitlement only while serving as a member of the Armed Forces when the transfer was executed." 4. The advisory opinion was forwarded to the applicant for acknowledgment/ rebuttal on 10 February 2016. In his rebuttal, dated 8 March 2016, the applicant reiterated his previous contentions and stated: a. He was not aware of the requirement for a TEB until 1 August 2013 following the conclusion of a TDY, returning to work, and having an opportunity to read through his unclassified Outlook account which contained an email from his platoon sergeant, dated 22 July 2013. He requested a TEB for his two dependents on 1 August 2013 based on the instructions in the email. On 2 August 2013 via email he requested the HRC GI Bill Team reject his request at the suggestion and direction of an HRC representative during a telephone conversation. b. Whether or not he wanted to incur a 4-year TEB service obligation wasn’t relevant. He could not incur a 4-year active duty service obligation because he was already within 4 years of his statutory MRD. That was reinforced at the time by the HRC representative he spoke with on the telephone and the Fort Meade Garrison CSM's email. c. He provided a copy of a letter, dated 8 March 2016, in which an IT professional stated he worked with the applicant in the same organization from August 2012 through November 2016. During that time the applicant experienced multiple challenges connecting to AKO and Army webmail. It took nearly 1 year for him to successfully connect to AKO and webmail. Afterwards and throughout the remainder of the applicant's time with the organization he continued to experience challenges with successfully accessing AKO and webmail and sought the team's assistance. REFERENCES: 1. Title 38, U.S. Code, section 3319 provides, in pertinent part, the authority to transfer unused education benefits to family members. In general, the Secretary concerned may permit an individual who is entitled to educational assistance under this chapter to elect to transfer to one or more dependents a portion of such individual’s educational assistance, subject to limitations. The purpose of this authority is to promote recruitment and retention in the uniformed services. An eligible individual is defined as one who, at the time of the approval of the request to transfer entitlement to educational assistance under this section, has completed at least 6 years of service and enters into an agreement to serve at least four more years (4 years) as a member of the uniformed service or the years of service as determined by regulations pursuant to the review/approval by the Secretary of Defense. 2. Based on the law, the DoD established the criteria for eligibility and transfer of unused educational benefits to eligible family members on 29 June 2009. The guidance was approved for public release and is available on the Internet, the DoD issuances website, DoD website, AKO, and Department of Veterans Affairs websites in addition to other veterans and unofficial military websites. The policy states eligible individuals include 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 entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and: a. Has a 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 service for the maximum amount of time allowed by such policy or stature; or c. Is or becomes 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 service or 20 qualifying years of Reserve service. 3. MILPER Message 13-102, issued on 15 April 2013, applied to Soldiers who would submit a Post-9/11 GI Bill TEB request on or after 1 August 2013. The message emphasized that all Post-9/11 GI Bill TEB requests submitted and approved after 1 August 2013, would incur a 4-year service obligation from the TEB request date, regardless of years of service (except when precluded by either policy or statute from committing an additional 4 years, e.g. temporary early retirement authority). DISCUSSION: 1. The applicant requested a TEB on 1 August 2013. Per his request HRC rejected this request on 7 August 2013. This request was prior to his subsequent selection by the FY15 SERB on 2 February 2015. A Soldier selected, as in the applicant's case, for involuntary retirement (such as by the SERB), must have an approved TEB request prior to a SERB selection and its subsequent release date. This would have allowed his TEB service obligation to be adjusted to his SERB selection approval date of 2 February 2015. 2. Notwithstanding his multiple contentions that during the initial 4-year period of the TEB program he never received information or was aware of the TEB service obligation requirement, he was serving in an active status when the program was implemented in August 2009. He remained on active duty until 30 November 2015. During that time many MILPER messages were released regarding eligibility for the Post-9/11 GI Bill including public service statements printed on leave and earnings statements, in newspapers, and through various other organizations. 3. He had sufficient time to submit his application and/or to verify that his application was submitted in the proper manner prior to the mandated change effective 1 August 2013. On this date, all participants by law were required to incur an additional 4 year active duty service obligation from which he would have been excluded as a result of his FY15 SERB approved selection. This program is an incentive program allowing the Armed Forces to retain qualified personnel beyond their initial enlistments or service obligations. The TEB is not an entitlement and should not be treated as such. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018110 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018110 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2