BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001716 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: 25 July 2017 DOCKET NUMBER: AR20160001716 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: 25 July 2017 DOCKET NUMBER: AR20160001716 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 approval of the transfer of her education benefits to her dependent son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states chapter 33 of the law did not exist until August 2009. 3. The applicant provides a Department of Veterans Affairs (VA) Statement in Support of Claim). 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. Orders C-10-591682 issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 31 October 2005, show her effective date of retirement as 31 March 2006 and placement on the Retired List on 1 April 2006 in the rank of sergeant first class/E-7. She completed 20 years and 26 days of active service. She also completed 3 years, 3 months, and 25 days of prior inactive service. 3. She provided a VA Statement in Support of Claim, dated 16 December 2015, in which she informed the VA that she believed she qualified for Post-9/11 GI Bill education benefits because she had over 20 years of active Army and Army Reserve service. She stated she was able to return to college and complete her education using this benefit. She has 14 months and 17 days of education benefits left which she wanted to transfer to her son. She was unaware of the new rules in reference to transferability of education benefits; chapter 33 of the law did not exist until August 2009. 4. On 9 December 2016, an advisory opinion was obtained from the Chief, Army Education Incentives, U.S. Army Human Resources Command, Fort Knox, KY, who recommended disapproval of the applicant's request to transfer her Post-9/11 GI Bill education benefits. The advisory official stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9-11 GI Bill benefits. Section 3020 of 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 on or after 1 August 2009. b. The applicant served honorably after 10 September 2001 for at least 90 days so she is eligible for the Post-9/11 GI Bill; however, she is ineligible to transfer education benefits, because she retired before 1 August 2009, which is the implementation date of the Post-9/11 GI Bill. c. The applicant was not a Retiree Recall after 1 August 2009 and does not have eligible service after 1 August 2009, so she is ineligible to transfer education benefits. d. Administrative relief is not recommended because the applicant did not make herself eligible to transfer education benefits by serving on active duty or in the Selected Reserve after 1 August 2009. e. Again, the applicant is eligible to use the Post-9/11 Bill for her personal use until 31 March 2021, which is 15 years after her last release from active duty. 5. The applicant was provided a copy of the advisory opinion to allow her an opportunity to submit a rebuttal/comments. On 29 December 2016 she responded on by stating: a. She retired with 20 years of qualifying active Federal service in 2006. The option to transfer benefits was not available and was not implemented until August 2009 with the original goal of allowing the benefits to be shared with dependents. b. The advisory opinion addresses the Post-9/11 GI Bill entitlement and the transferability of education benefits, based on Public Law 110-252, dated 30 June 2008, it does not appear to consider an exception for service completed on or before 1 August 2009: "If a veteran is retirement eligible, than [then] no additional service will be required." Further, she had no control over being able to continue to serve in the Selected Reserve or to be recalled from retirement after 1 August 2009. c. Transferability of education benefits to family members has long been one of the most requested items among military family readiness and advocacy groups. The transferability option gives military members the ability to continue to support their families by providing additional financial assistance with education, training, and certifications. “The VA 39 Division of Financial Regulation Part 21, dated 31 March 2009, section 21, Transfer of Entitlement to Basic Educational Assistance to Dependents, Transfer of Entitlement states, a service department may approve transfer of entitlement and may transfer up to a total of 36 months to a dependent (or among dependents),” based on an individual's active duty service. d. Based on her eligible Post-9/11 benefit entitlement, years of qualifying active service and the exception, reference no additional service required, consideration for approval of this action is requested. She is requesting to transfer the entire portion of her unused education benefit of 14 months and 17 days to her dependent son, D____ L____, who is pursuing higher education as a full-time student at a local university. REFERENCES: On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual 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 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. DISCUSSION: 1. The evidence of record shows the applicant retired on 31 March 2006 after completing 20 years and 26 days of active military service and 3 years, 3 months, and 25 days of prior inactive service. 2. 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 on or after 1 August 2009. 3. The evidence of record shows the applicant retired more than 3 years prior to implementation of the TEB provision of the Post-9/11 GI Bill. Therefore, she does not meet the eligibility criteria to transfer her education benefits to her dependent son under the TEB provision of the Post-9/11 GI Bill. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001716 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001716 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2