BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001483 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: 1 June 2017 DOCKET NUMBER: AR20160001483 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: 1 June 2017 DOCKET NUMBER: AR20160001483 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 reconsideration of his earlier request for an exception to policy to transfer educational benefits to his eligible dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in effect, that he is eligible to receive the Post-9/11 GI Bill and that he attempted to transfer his benefit in May 2011 during an annual training exercise at Hanscom Air Force Base prior to retiring; however, he was told to wait until his son applied to school to transfer the benefit. He contends that because he was not at his home station he was given incorrect information. 3. The applicant provides: * DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 12 April 2011 * Order Number 007651, dated 2 May 2011 * Hanscom Inn Receipt, ending 14 May 2011 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. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140007851 on 6 January 2015. 3. The applicant provides military orders and a new argument that warrant consideration by the Board. 4. The original Record of Proceedings found that the applicant failed to provide sufficient evidence to show that he attempted to transfer benefits prior to leaving military service, that he was given false information by a reliable source about the rules of transferring education benefits, or that he was unfairly deprived of information on the program. 5. The applicant was assigned to the Retired Reserve effective 31 May 2011. 6. He provides military orders and a lodging receipt showing he was assigned to Hanscom Air Force Base, Massachusetts for the purpose of Annual Training for the period 13-15 May 2011. 7. A review of his records reveals no evidence that he attempted to transfer his unused education benefits to his dependents in accordance with the TEB provision of the Post-9/11 GI Bill. 8. On December 2016, the Chief, Army Education Incentives, recommended disapproval of the applicant’s request for an exception to policy to transfer Post 9/11 GI Bill education benefits stating: a. The Post 9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The option to transfer education benefits to a dependent is considered an incentive, not a benefit. The transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for service nor a transition benefit. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. b. The TEB incentive does not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility as stated in paragraph 1 and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation. c. In April 2011, the ABCMR and the Department of the Army (DA) G-1/Directorate of Military Personnel Management/Enlisted Professional Development Branch (Post-9/11 GI Bill policy proponent) agreed that any Soldier who retired after 1 Aug 2009 through the next 90 days or was on terminal leave during the first 90 days and subsequently retired may not have received sufficient information during this timeframe to submit a TEB request. This timeframe is referred to as the "TEB 90-day implementation phase." Any Soldier retiring after this timeframe is considered as having sufficient time to have had access to TEB incentive information. d. The applicant could have obtained the TEB eligibility criteria through the Department of Defense (DoD) Directive-Type Memorandum 09-003 (dated 22 June 2009), Attachment 2, paragraph 3a(3), the Department of the Army (DA) Post-9/11 GI Bill Policy Memorandum, paragraph 17a(4), DoD, DA, and U.S. Army Human Resources Command websites, and various briefings at the installation level. He could have used these resources available to him to research the TEB incentive requirements. e. All of the TEB information available to him included the requirement to transfer while either in Active Duty or Selected Reserve status and the possible requirement to serve an additional service obligation. Specifically, the DA Post- 9/11 GI Bill Policy Memorandum, paragraph 17g(1) stated, "Time for Transfer. A Soldier 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." f. The applicant stated in his letter to the ABCMR that he attempted to transfer his Post-9/11 GI Bill in May 2011; however, the TEB website does not indicate he submitted a TEB request. He also stated he was given incorrect information about when to submit a TEB request; however, he does not provide proof of the incorrect information. g. For a TEB request to be submitted successfully, he would have been required to submit a TEB request through the TEB website first. Later, when his dependents completed high school or turned 18, his dependents would be required to apply through the VA website for usage. h. This office sympathizes with applicant and his dependents; however, TEB is an incentive, not a benefit. Regretfully, he did not submit a TEB request during this timeframe as required by law and policy. REFERENCES: 1. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 2. On 22 June 2009, the DoD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her 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. DISCUSSION: 1. Public Law 110-252 established legal requirements on the transferability of unused education benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 2. The applicant was fully eligible to transfer his educational benefits prior to his transfer to the Retired Reserve; however, he did not do so. The program was implemented in July 2009. He provided evidence which shows that he was at a temporary duty location for the purpose of Annual Training approximately two weeks prior to his transfer to the Retired Reserve on 31 May 2011. There is no evidence that he was given improper guidance at that location or that he attempted to transfer his Post-9/11 GI Bill educational benefits to his family members while still a member of the Selected Reserve. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001483 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001483 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2