BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160001179 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: 27 July 2017 DOCKET NUMBER: AR20160001179 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. BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160001179 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 daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. He states he was unaware of the requirement to transfer his educational benefits. He contends that he was never briefed and that during the period 2009 to 2010 he was training for deployment and then deployed to Iraq. Upon his return, he went on leave with his family and then started his out-processing. He states his installation clearance paperwork does not say anything about this program and the requirement to transfer benefits. He asks the Board to consider his daughter's future. 3. He provides: * numerous family photographs * West Virginia University Payment Records * DA Form 137-2 (Installation Clearance Record), prepared on 23 May 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Disability Rating, dated 13 April 2012 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. On 1 September 2011, the applicant retired from the Regular Army in the rank of staff sergeant/E-6. He and the transition center official signed his DD Form 214 on 31 May 2011 prior to his initiation of transition leave. This form shows: * he completed 20 years, 5 months, and 24 days of active service * he served three combat tours in Iraq, to include from 10 October 2009 to 25 August 2010 3. His DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 23 May 2011, indicates he was briefed on his education benefits; however, this document does not contain his signature. He provided his Installation Clearance Record showing he cleared the Education Center. 4. The applicant provided evidence showing the VA awarded him a 90-percent service-connected disability rating. 5. On 9 November 2016, the Chief, Education Incentives Branch, recommended disapproval of the applicant's request for an exception to policy to transfer his Post-9/11 GI Bill educational benefits, stating: a. Section 3020, Public Law 110-252, 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. Relief is not recommended unless the applicant can provide evidence showing he attempted to transfer unused educational benefits prior to leaving military service and/or he was given false information by a reliable source about the rules for transferring educational benefits. b. Soldiers 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 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 31 August 2011, which was not within 90 days after the program's implementation. c. A service member must initially request to transfer benefits using the DOD's TEB online database. The TEB database was operational effective 29 June 2009. Once approved in the TEB online database by the member's service, the approval information is electronically relayed to the VA. The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken. 6. The applicant was provided the advisory opinion for review and comment. No response was received. REFERENCES: 1. Title 38, U.S. Code, section 3319(f), and DOD Instruction 1341.13, subject: Post-9/11 GI Bill, stipulate that an individual must transfer entitlement while serving as a member of the Armed Forces. Transferred entitlements may be modified or revoked at any time, but individuals may not add family members after retirement or separation. 2. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 110-252, House of Representatives, 2642. In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009. Individuals with qualifying active duty service after 10 September 2001, those who served an aggregate period of 90 days to 36 months on active duty or served at least 30 continuous days and were discharged from active duty due to a service-connected disability, were deemed eligible for the Post-9/11 GI Bill. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. 3. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible member is 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 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 31 July 31 2012, and agrees to serve an additional period of service. If a Soldier obtains 20 years of service during 2 August 2010 to 1 August 2011 the Soldier will incur a 2 year Active Duty Service Obligation (ADSO). 4. 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 purpose of this policy is to implement the Post-9/11 GI Bill in order to enhance the Army's recruiting and retention programs. The policy further states, that the Commanding General, U.S. Army Human Resources Command, will: a. provide the day-to-day management of the Post-9/11 GI Bill; b. provide for training and reference materials to installation Army Education Center personnel and the U.S. Army Recruiting Command; c. provide, as needed, counseling to all Soldiers with inquiries regarding their educational entitlements; d. conduct mandatory education benefits counseling for all Soldiers separating from the Army as required by Title 10, U.S. Code, section 1046, no later than 150 days before separation date. Counselors advise Soldiers but have no authority to make benefit determination. The VA is the administrator of the Post-9/11 GI Bill program and is responsible for establishing eligibility and payment amounts. Record the following counseling statement on DA Form 669 (Educational Development Record) after completion of mandatory counseling: "In accordance with Title 10, U.S. Code, section 1046 (Mandatory Benefits Counseling), I have received individual counseling concerning my Veteran's educational benefits"; and e. require Soldier's signature attesting to the receipt of counseling. 5. Army Regulation 600-8-101 (Personnel Processing (In-, Out-, Soldier Readiness, and Deployment Cycle)) in effect at the time states that as the focal point for installation or community-level out-processing, the process control station will designate the stations through which each Soldier must process, do appropriate coordination with other installation and or community-level out-processing stations, provide any required special guidance, and ensure that each Soldier has processed properly before clearing him or her for departure. The DA Forms 137-1 (Unit Clearance Record) and 137-2 identify the out-processing stations requiring clearance from all Soldiers departing on permanent change of station or transitioning from the Active Army. 6. 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. 7. The DOD, military departments, and the VA conducted a public campaign plan on the TEB that generated communications through military, public, and social media venues. DISCUSSION: 1. The Post-9/11 GI Bill policy states a Soldier who is or becomes retirement eligible during the period 1 August 2009 through 31 July 2012, and agrees to serve an additional 2-year period of service, may transfer his/her educational benefits to eligible family members through the TEB online application. The TEB is a retention incentive, not a benefit. 2. The applicant deployed to Iraq in October 2009, approximately 60 days after the program was implemented and he returned from Iraq in August 2010. The applicant began his out-processing on 23 May 2011. His Installation Clearance Record shows he cleared the Education Center. His Pre-Separation Checklist, although not signed by the applicant, also indicates he was briefed in regards to his military education benefits. On 31 May 2011, 8 months after returning from his third tour in Iraq, the applicant finalized his retirement out-processing by signing his DD Form 214. The applicant retired on 31 August 2011. 3. 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. It was acknowledged that there may have been some confusion during the early stages after the implementation, and as an exception to policy, Soldiers who left the Army within 90 days of implementation of the policy have been granted relief. 4. The available evidence shows the applicant was eligible to transfer his educational benefits under the TEB prior to retirement provided he extended his enlistment by 2 years, but he did not do so. His records are void of evidence specifically showing he received a Post-9/11 GI Bill briefing concerning the TEB; however, he had ample opportunity to become familiar with the TEB provision of the Post-9/11 GI Bill after its introduction on 1 August 2009 and before his retirement 2 years later on 31 August 2011. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001179 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001179 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2