BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160016190 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 BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160016190 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 records of the individual concerned be corrected by showing the applicant filed and the Army approved, in a timely manner, his application to transfer his unused education benefits to his eligible dependent(s), in accordance with the Transfer of Education Benefits (TEB) provisions of the Post-9/11 GI Bill, prior to his effective date of retirement, provided all other program eligibility criteria were 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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160016190 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, correction of his records to show he made a timely application, prior to his effective date of retirement, to transfer his unused education benefits to his eligible dependent(s), in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he retired on 31 August 2009 from the U.S. Army Reserve (USAR) and he is entitled to transfer his benefits to his children. He further states that from August through November 2009, thousands of Soldiers were not notified by the U.S. Army Human Resources Command (HRC), which caused a prejudicial error. 3. The applicant provides a letter to the Board and a DD Form 214. However, the DD Form 214 was not located with his application. 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. Following enlisted service in the Army National Guard (ARNG), the applicant was appointed as a Reserve Commissioned Officer of the Army on 23 June 1985. After serving in a number of positions in the USAR, throughout a number of periods on active duty, he was promoted to lieutenant colonel (LTC) on 3 February 2006. 3. Orders 09-182-00001, issued by Headquarters, 87th U.S. Army Reserve Support Command (East), Birmingham, AL on 1 July 2009, released the applicant from his current assignment by reason of his completion of 20 or more years of qualifying service for retirement pay at age 60, and assigned him to the U.S. Army Reserve Control Group (Retired Reserve) effective 31 August 2009. 4. In the processing of this case, an advisory opinion was obtained on 4 November 2016 from the Chief, Army Education Incentives Branch, HRC, Fort Knox, Kentucky. The advisory official recommended approval of the applicant's request to transfer his unused transfer Post-9/11 GI Bill education benefits, noting: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. 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 on or after 1 August 2009. Based on the details below, we recommend administrative relief for [Applicant] as he was on terminal leave and transferred to the Retired Reserve within 90 days of program implementation, and met other TEB requirements. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left service during the 90-day implementation phase were not fully aware of the requirement to transfer prior to leaving military service. b. [Applicant] had at least six years of active duty, did not have a negative action flag at the time of his retirement, and would not have incurred a TEB service obligation; therefore, had he requested TEB during the implementation phase and prior to retirement, his TEB request would have been approved. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the 90-day implementation phase. The U.S. Army, Department of Defense, and Department of Veterans Affairs (DVA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and TEB. [Applicant]'s last day in the service was 31 August 2009 which was within the 90-day implementation phase. In previous cases, ABCMR granted relief based upon the terminal leave or retirement date within the 90-day implementation phase. 5. The applicant was provided a copy of the HRC advisory opinion on 8 November 2016 for information and to allow him the opportunity to submit comments or a rebuttal; however, he did not respond. 6. The applicant provides a personal letter to the Board explaining that his family has supported his military career and he wants to transfer his benefits to his dependents, as his eldest daughter is currently going to college and the benefits would make a huge difference on her ability to stay in college. REFERENCES: 1. 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 stated eligible individuals included 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, was eligible for the Post-9/11 GI Bill, and: a. had at least 6 years of service in the Armed Forces on the date of election and agreed to serve 4 additional years in the Armed Forces from the date of election; or b. had at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, was precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agreed to serve for the maximum amount of time allowed by such policy or statute; or c. was, or became, retirement eligible during the period 1 August 2009 through 1 August 2013. 2. The policy further stated the Secretaries of the Military Departments would provide counseling on the benefits under the Post-9/11 GI Bill to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty, document accordingly, and maintain records for individuals who received supplemental educational assistance under Public Law 110-252, section 3316. 3. Public Law 110-252 limits the 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. 4. The Education Incentives Branch at HRC has previously advised the Board that although significant measures were taken to disseminate the information to all Soldiers within Army components during the initial phase of the program, many Soldiers who left service or started transition leave during the first 90 days of the program's implementation were not fully aware of all the requirements to transfer benefits to all eligible family members. DISCUSSION: 1. The evidence of record shows the applicant was honorably retired on 31 August 2009 after completing more than 20 years of service. The Education Incentives Branch at HRC opined that administrative relief should be granted since he met the qualifications for transferring his Post-9/11 GI Bill benefits and would not have incurred a service obligation. 2. It is also noted that many Soldiers who left the service or started transition leave during the first 90 days of the program were not fully aware of the requirements to transfer benefits to all eligible family members. 3. In this case, it is reasonable to conclude that, had the applicant known of the proper procedures to follow to successfully transfer his unused education benefits, he would have complied with them prior to his retirement on 31 August 2009. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016190 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016190 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2