IN THE CASE OF: BOARD DATE: 18 January 2022 DOCKET NUMBER: AR20210007269 APPLICANT REQUESTS: entitlement to Post 9/11 GI Bill Transfer Educational Benefits (TEB) to his dependent children. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 April 2005 * Department of Veterans Affairs (DVA) letter, dated 24 February 2021 * Email Communication FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in pertinent part that he was misinformed during his separation processing in both 2005 and 2008 with regard to TEB under the Post 9/11 G.I. Bill. Had he been informed properly, he would have submitted the appropriate documentation while he was on active duty and met the 4-year service obligation following his return from deployment. He further argues that he served on active duty for 8-years (1990- 1998) and then 12 years within the Ohio Army National Guard (OHARNG) (1998-2010) retiring with a total of 20 years of service. His ARNG unit was activated twice after 9/11 and he accumulated 675 days of active service over those 2 deployments 2004-2005 and 2007-2008. He contests that during his out-processing from active duty in 2005 and again in 2008, he was advised that he was not eligible for educational benefits under the Post 9/11 G.I. Bill because he had previously received a scholarship when he was enrolled in the Reserve Officers' Training Corps (ROTC) program. Twelve years later, his wife informed him that she believed that he was eligible for education benefits. He later applied and subsequently received his eligibility letter. As such, he would now like to make an election to TEB under the Post 9/11 G.I. Bill to his dependent children. His daughter is currently enrolled in college and his son is currently in high school. a. He received an email from the VA informing him that his daughter's applicant for educational benefits was denied. He contacted the VA and was advised that they were unable to assist because the service component provides the eligibility rules. He then contacted the ARNG Human Resource Management office at Camp Robinson. He was advised that the reason for his denial was due to his failure to make a TEB election prior to his retirement. Further, the TEB under the Post 9/11 G.I. Bill was a retention tool and he did not have the required 4 years of subsequent service. b. He understands that ignorance is not a strong excuse or reason. However, he is certain that he would have made an election to TEB in 2005 and in 2008. He understands that he does not have the 4 years obligated service after returning from his second deployment in 2008. However, the correction that he is requesting is that he be afforded the opportunity to make his election to TEB to his dependent children based on his active duty service from 2004-2005. Based on this period of service, his subsequent service in the ARNG would have fulfilled the required 4-year service obligation prior to his retirement in 2010. He understands that would not have earned as much qualifying service time, but he is willing to accept whatever percentage this period of active duty service would qualify for. 3. A review of the applicant's available service records reflects the following: a. The applicant was born on XX X___ 19XX and will turn 60 on XX J___ 20XX. He was married on 31 August 1996, and according to his available records, he has a daughter born on XX X___ 20XX and a son born on XX X___ 20XX. b. Following his service in the U.S. Army Reserve (USAR) as an ROTC Cadet, on 20 May 1990, the applicant was appointed a Reserve commission. On 17 June 1990, he was ordered to active duty and on 28 February 1998, he was released from active duty and reassigned to the USAR. c. On 23 April 1998, the National Guard Bureau issued Special Orders Number 74 AR announcing Federal recognition of the applicant's initial appointment into the Ohio ARNG, effective 1 March 1998. d. On 5 July 2004, the applicant was ordered to active duty in support of Operation Joint Guardian, and on 4 April 2005, the applicant was released from active duty. e. On 4 September 2007, the applicant was ordered to active duty in support of premobilization operations and on 2 January 2008, the applicant was released from active duty. f. On 3 January 2008, the applicant was ordered to active duty in support of Operation Iraqi Freedom and on 6 February 2009, the applicant was released from active duty. g. On 7 June 2010, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). h. On or about 1 July 2010, the applicant was transferred into the Retired Reserve. i. His ARNG Form 23B (ARNG Retirement History Statement), dated 7 June 2010, shows he completed 20 qualifying years of service toward non-regular retirement. 4. The applicant provides the following a: a. VA letter, dated 24 February 2021, reflective of the applicant being entitled to 36 months of education benefits under the Post 9/11 G.I. Bill based upon his military service. b. Email Communication reflective of the applicant receiving notification that his submitted claim for education benefits had been denied due to his ineligibility. The applicant was further advised that he was not able to make an election to TEB to his dependents because he was no longer in the military. However, the applicant may still be eligible to utilize education benefits himself. 5. The applicant did not provide nor does review of his available service records reflect documentation of his election to TEB under the Post 9/11 G.I. Bill to his dependents during any period of his military service. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members found the applicant did not provide nor does review of his available service records reflect documentation of his election to TEB under the Post 9/11 G.I. Bill to his dependents during any period of his military service. In addition to other eligibility criteria, the TEB requires the member to be on active duty or in the Selected Reserve on or after 1 August 2009. The applicant has not provided evidence that he met this criteria. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, 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 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. 2. Public Law 110-252 section 3319 (Authority to Transfer Unused Education Benefits to Family Members) states that an individual transferring an entitlement to educational assistance under this section shall designate the dependent or dependents to whom such entitlement is being transferred, designate the number of months of such entitlement to be transferred to each such dependent and specify the period for which the transfer shall be effective for each dependent. An individual 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. 3. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. a. Transferability of Unused Benefits to Dependents. For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component. Soldiers whose request to transfer benefits is approved will incur an additional service obligation in accordance with the below policy. Soldiers are expected to serve the additional service obligation. b. Eligibility. (1) Any Soldier of the Armed Forces who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier’s request to transfer entitlement to educational assistance does not have an adverse action flag, is eligible for the Post 9/11 GI Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election and if cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD), must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred. (4) Is or will become retirement eligible during the period from 1 August 2009, through 1 August 2013 and agrees to serve the additional period, if any, specified below. For the purposes of this paragraph, a Soldier is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under Title 10 U.S.C Section 12732. * Soldiers eligible for retirement on or before 1 August 2009, no additional service is required * Soldiers with an approved retirement date on or after 1 September 2009, but on or before 1 June 2010, no additional service requirement * Soldiers who attain 20 years of service on or after 2 August 2009 and before 2 August 2010, one year of additional service from the date of request is required * Soldiers who attain 20 years of service on or after 2 August 2010 and before 2 August 2011, two years of additional service from the date of request are required * Soldiers who attain 20 years of service on or after 2 August 2011, and before 2 August 2012, three years of additional service from the date of request are required (5) If a Soldier transferring entitlement fails to complete the service agreed to by the Soldier in accordance with the terms of the agreement of the Soldier, the amount of any transferred entitlement that is used by a dependent of the Soldier as of the date of such failure shall be treated as an overpayment of educational assistance and will be subject to collection by DVA. Future entitlements will be terminated. Exceptions: * The death of the Soldier * Discharge or release from active duty for a medical condition which pre- existed the service of the Soldier and was not service connected * Discharge or release from active duty for hardship * Discharge or release from active duty for a physical or mental condition not a disability and that did not result from the Soldier’s own willful misconduct, but did interfere with the performance of duty 4. Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements) provides that Soldiers may elect to transfer their Post-9/11 GI Bill education benefits to their spouse, one or more of their children, or a combination of spouse and children through the TEB website in the milConnect portal at https://www.dmdc.osd.mil/mil- connect or http://milconnect.dmdc.mil. Only dependents listed as eligible in the TEB website may receive the Post-9/11 GI Bill education benefit. The DVA is responsible for determining eligibility for education benefits under the Post-9/11 G.I. Bill. Generally, to be eligible for the Post-9/11 G.I. Bill, Soldiers must serve on active duty (AD) in Regular status or on AD on specific Title 10 or Title 32 orders on or after 11 September 2001, for at least 30 continuous days with a discharge due to a service-connected disability, or an aggregate period ranging from 90 days to 36 months or more. Paragraph 4-4 (Eligibility Exclusions) provides that for purposes of attaining Post-9/11 G.I. Bill eligibility, the first 4-years of active service, for ROTC "Scholarship" participants, is considered the Active Duty Service Obligation (ADSO) and therefore is not qualifying AD service for purposes of establishing eligibility for the Post-9/11 GI Bill. However, the 3-year ADSO for "Non- scholarship" ROTC commissions, Officer Candidate School (OCS), and direct commission officers is qualifying AD service for determining Post-9/11 G.I. Bill eligibility. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007269 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1