ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   
BOARD DATE: 3 November 2021 
DOCKET NUMBER:  AR20210011077 
APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court for the District of Columbia. The Court directs the ABCMR to reconsider the applicant's request for correction of his records to show a timely Post 9/11 GI Bill Transfer of Education Benefits (TEB). 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
Court remand in lieu of DD Form 149 (Application for Correction of Military Record), dated 31 March 2021. 
FACTS: 
1. The applicant filed his original ABCMR application in 2015. At that time his request for TEB was denied based upon the requirements in Public Law 110-252, and the applicant at the time did not transfer benefits to his dependents prior to his retirement. He then petitioned the Board for a reconsideration of his case in 2017. At that time his request was denied again based upon the requirements in Public Law 110-252, and he used a portion of the Post 9/11 GI Bill prior to his retirement, which did not support his contention of a lack of knowledge of the program. The applicant then filed the instant lawsuit. Both parties filed motions for summary judgment. The Court granted the applicant’s motion on the basis that the ABCMR’s decision to deny relief was arbitrary and capricious. The Court remanded the case for further consideration by the ABCMR. 
a. 
Counsel contends in part, as the court notes in its opinion, the ABCMR did not address the Army's legal duty to individually counsel Soldiers concerning their right to transfer unused educational benefits. That legal duty is explicit and non-discretionary, as provided by Directive Type Memorandum (DTM) 09-003. It is undisputed that the Army did not individually counsel the applicant as required by the DTM. Had it done so he would have elected to transfer, as he has testified via declaration under penalty of perjury. 

b. 
The applicant also noted to the ABCMR that the case of Lieutenant General (LTG) T-v. United States, 119 F. Supp. 3d 462 (E.D. Va. 2015), "controlled" the 


ABCMR's decision in the applicant's case. The court corrected that assertion by noting that LTG T-was not binding on the ABCMR in the applicant's case, but that the "requirement of reasoned decision making compelled the Board to consider the case," which the Board did not do. 
c. 
As the applicant detailed to the ABCMR and the court, there are no significant, much less material, differences between the two cases. The applicant also informed the ABCMR that it had favorably decided LTG T-'s matter on remand from the Eastern District of Virginia some nine months prior to issuing a final decision on his initial application, yet had failed to address LTG T-'s decision in its decision on his first application. The applicant informed the ABCMR, "there is no mention of the LTG T decision in the ABCMR decision on his application. We contend that because of the strong factual and legal similarity, LTG T-controlled the outcome of the applicant's case, and the ABCMR's failure to consider and follow LTG T-was legal error." It appears that the ABCMR did not give any consideration to LTG T-in deciding the applicant's initial application. 

d. 
Here, there is no evidence that the Army complied with its legal duty to counsel the applicant. There is no evidence that he was aware of the requirement to elect transfer while on active duty, and he has clearly stated that he was not. The applicant's declaration stands unrebutted. In summation, the Army failed to counsel him as required concerning the transfer of his unused benefits. The applicant had no knowledge of the transfer requirements and would have elected to transfer had he known them. The applicant served our nation honorably and faithfully and deserves the fair treatment (full relief) ultimately granted by the Board to LTG T-. 


2. 
The entire court remand is provided in the supporting documents for the Board's review. 

3. 
A review of the applicant's official record shows: 


a. 
On 13 February 1987, Special Orders Number 29, issued by the National Guard Bureau (NGB) appointed the applicant as a Reserve commissioned officer in the Army National Guard (ARNG). 

b. 
On 5 July 2004, the applicant was ordered to active duty in support of Operation Joint Guardian. 

c. 
On 21 July 2004, Special Orders Number 179, issued by the NGB, promoted the applicant to the rank/grade of lieutenant colonel (LTC)/O-5. 

d. 
On 22 May 2005, the applicant was honorably released from active duty. He completed 10 months and 18 days of net active service. 

e. 
On 24 October 2006, the applicant was released from the ARNG for appointment in the U.S. Army Reserve (USAR) and transferred to the USAR Control Group (Reinforcement). 

f. 
On 5 December 2006, Orders Number 339-004, issued by the Adjutant General's Department, separated the applicant from the ARNG and transferred him to the USAR Control Group (Reinforcement), effective 24 October 2006. 

g. 
NGB form 23B (ARNG Retirement Points History Statement) shows retirement year beginning 4 September 2006 and ending on 29 September 2006, the applicant earned 26 active duty points. For retirement year beginning 30 September 2006 and ending 24 October 2006, the applicant earned 4 inactive duty points, 2 membership points, and 1 active duty point. He completed 20 years, 1 month, and 21 days of creditable service for retired pay. 

h. 
On 10 November 2008, the applicant was ordered to active duty for contingency operations in support of Operation Enduring Freedom. 

i. 
On 4 April 2012. Orders Number C-04-205033, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve by reason of reaching maximum age, effective 1 June 2012. 

j. 
On 30 May 2012, the applicant was honorably released from active duty. He completed 3 years, 6months, and 21 days of net active service. 

k. 
On 7 June 2015, the applicant petitioned the Board to correct his record to show TEB to his dependents. On 7 April 2016, the Board denied the applicant's request. 

l. 
On 20 March 2017, the applicant petitioned the Board for a reconsideration of his previous request to TEB to his dependents. On 16 September 2019, the Board denied the applicant's request. 


3. On 11 August 2021, HRC reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Education Incentives Branch opined in part that: 
a. 
The Post 9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict; however, the option to transfer this education benefit to eligible dependents are a retention incentive. 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. 
Soldiers receive counseling on all GI Bills, including the Post 9/11 GI Bill benefit and the TEB incentive at various venues throughout the Soldier’s career (in/out-processing at Education Centers, Commander’s Calls), upon demobilization or release from active duty, and during the last year before separation or retirement (Soldier for Life (SFL)-Transition Assistance Processing (TAP)). Soldiers have had access to and received counseling on GI Bill benefits through SFL-TAP (i.e., ACAP XXI or TAP XXI) since 2002 on-line and in-person. 

c. 
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. 

d. 
The applicant could have obtained the TEB eligibility criteria through the Department of Defense (DOD) DTM 09-003 (dated 22 June 2009), the Department of the Army (DA) Post 9/11 GI Bill Policy Memorandum (dated 10 July 2009), paragraph 17a(4), DOD, DA, and HRC websites, various briefings at the installation level, and briefings through SFL-TAP. He could have used the DOD and DA resources available to him. 

e. 
The TEB website shows the applicant did not submit a TEB request after it became available on 1 August 2009 or the three years thereafter, prior to his retirement on 1 June 2012 from the U.S. Army. On 30 July 2021, this office contacted the Defense Manpower Data Center (DMDC) to determine if a TEB request was submitted by him. DMDC confirmed that he accessed the TEB website multiple times after his retirement. DMDC also confirmed there was no indication that a TEB request was submitted. Again, TEB is a retention incentive, not a Soldier’s entitled benefit. 

f. 
The applicant could have requested TEB anytime from the program’s inception on 1 August 2009 to his last day in service on 31 May 2012 and would have been granted a "zero" year Additional Duty Service Obligation (ADSO) based on his number of years of service. This would have been in accordance with the U.S. Army Post 9/11 GI Bill Policy Memorandum, paragraph 17a(4)(a), dated 10 July 2009. 

g. 
Please note the applicant used 8 months of Post 9/11 GI Bill in 2010-2011 for a total of $30,871.68, so he was familiar with this particular GI Bill and the TEB incentive. He received $30,755.00 in tuition/fees, and $116.68 in books/supplies. He did not receive a housing stipend because he was on active duty orders in Selected Reserve status and receiving the Basic Allowance for Housing (BAH). He used Post 9/11 GI Bill while still on active duty orders in Selected Reserve status, not in retired status. In May 2011, he received a Certificate in National Security Law. 


4. On 20 August 2021, through counsel, the applicant provided a response to the advisory opinion and stated: 
a. The principal basis for the advisory opinion's recommendation of denial is the applicant's failure to make a request for the subject benefits while he was on active duty. Yet it is undisputed that the Army failed to inform him of that requirement, and the 
U.S. 
District Court specifically found such argument to be unlawful: "Of course the applicant did not present evidence of an attempted transfer of education benefits while on active duty. His claim was he did not know about the transfer benefit or its restrictions because the Army had failed to provide him mandatory education benefits counseling upon retirement. The Army supplied no evidence to contradict his asserted lack of knowledge. It therefore was unreasonable for the Board to have denied his claim based on the absence of any attempt to make an active-duty transfer." 

b. 
The advisory opinion further states, perplexingly, that "the TEB requirement does not require a formal one-on-one counseling." But the law does require exactly that. As the Court stated: "In neither instance did the Board address the plain language of DTM 09-003 or Army policy. DTM 09-003 requires that the "Secretaries of the Military Departments shall 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." Similarly, the Army issued implementation policy directs educational officers to "conduct mandatory educational benefits counseling for all Soldiers separating from the Army no later than 150 days before separation date." Thus, both DTM 09-003 and Army policy would appear to require individualized pre-retirement counseling of Soldiers like the applicant to advise them of their benefits under the Post­9/11 GI Bill. 

c. 
The applicant received no such counseling, whether in person, one-on-one, in a group, or via the internet. The attempt of the advisory opinion author to parse the counseling requirement thus fails, since there was no counseling of the applicant in any form. 

d. 
The remainder of the rebuttal is provided in the supporting documents for the Board's review. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory guidance and public law.  The Board considered the applicant’s statement, his record of service, Human Resources Command (HRC) Chief, Education Incentives Branch, documents provided by the applicant’s counsel and the review and conclusions of the advising official. After reviewing all of the evidence, the Board determined that the preponderance of the evidence shows the applicant was unaware that he needed to transfer his Post-9/11 GI Bill benefits to his dependents prior to retirement because the Army did not counsel him. The applicant stated he was not counseled as required by Army policy and the record supports his claim. Army policy when the applicant retired required individual documented pre-separation counseling regarding Post-9/11 GI Bill benefits. There is no documentation that this occurred. The Board found the applicant’s statement that he would have made a timely transfer if he had been advised of the timing requirement to be credible. 
The Board found that a preponderance of the evidence shows an injustice occurred when the applicant was denied the opportunity to transfer his benefits to his dependents due to the Army’s failure to individually counsel and document the counseling regarding these benefits. Therefore, the Board granted relief to show the applicant submitted his Post 9/11 GI Bill Transfer of Education Benefits (TEB) in a timely manner. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
XX XX XXX GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
: : : DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The Board determined that the evidence presented was 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 his application to transfer his educational benefits in a timely manner and was approved by the Army, 
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. 
REFERENCES: 
1. 
Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, 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, have at least 6 years in an active duty or Selected Reserve status and no current negative. action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. 

2. 
DTM 09-003 (Post 9/11 GI Bill) paragraph g, in effect at the time 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 

3. 
Department of the Army Post 9/11 GI Bill Policy Memorandum, dated 10 July 2009 and in effect at the time, states that mandatory educational benefits counseling shall be 


conducted and documented for all Soldiers separating from the Army and the Soldier’s 
signature shall be required attesting to receipt of counseling. 
//NOTHING FOLLOWS//