BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150001964 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 family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. This is his final appeal in this matter. His dependents have been denied these benefits after being told that they could plan on receiving them. This creates a significant hardship, especially because his daughter started attending college this year. Without this benefit, paying for her to attend college is proving to be very challenging. He will have children in college for the next 8 years. He has requested help from his Congressman so that he may appear in person before the Board. b. His last request was denied and seemed to be caught up in the fact that right before he retired he sought help from a senior career counselor. The help that the career counselor provided was never intended to be an initial request. It was intended to be a retroactive approval of his initial request submitted in 2009. The dated screenshot of that transfer is included. c. There was little information available with regard to TEB in 2009. He discussed the TEB with several people who have provided statements stating that they reviewed his request and no further action should have been required by him. Because the TEB was so new at the time he found himself being a spokesperson for the program. This is evident by a memorandum for record provided by Staff Sergeant L____. d. Because there was no online verification and no further instructions for processing the transfer to ensure his transfer was correct, he could not verify through his command or the education center staff that his transfer was complete. e. At no time was he contacted by a reenlistment noncommissioned officer (NCO), a Career Counselor, or the Army Human Resources Command (AHRC) with instructions to do anything further. Over the next six years he checked the status of his TEB and the status was shown as submitted. A couple of months before he retired his TEB status changed to denied. He could not do anything to alter it because he had received his retirement orders. This prompted him to contact a number of people, including Master Sergeant (MSG) F____ who incorrectly processed and approved a new request. He does not dispute that fact. f. He transferred his Post-9/11 GI Bill benefit to his children on 8 July 2009. In accordance with Directive-Type Memorandum (DTM) 09-003 (Transferability of Unused Education Benefits to Family Members) , he served 3 years, 4 months, and 22 days of service which complied with his situation of being eligible for retirement between 1 August 2009 and 1 August 2013, making him eligible to serve for a period less than 4 years. He references the requirement for TEB from DTM 09-003. g. When he volunteered for retirement he was under the assumption that his TEB was valid and his children would have that funding available for college. He had no reasonable way of knowing that there was any problem with his TEB. The status of his TEB was not addressed in his transition briefing. To this day, the program has not been advertised or briefed to Soldiers. h. On 1 December 2012, he retired from active duty. His wife’s name was added to those eligible for Post-9/11 GI Bill benefits. In the spring of 2013, she applied to use the benefit to pay for some college classes. She was issued a Certificate of Eligibility, but when the request for payment was made, it was denied. 3. The applicant provides copies of the following: * TEB screen print * Orders Number 025-0002 * DA Form 4187 * VA Certificate of Eligibility letter * DoD Manpower Data Center notification * excerpt of DTM 09-003 * Certificate of Eligibility * self-authored statement * letters of support * information pertaining to TEB program CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130019755, on 6 August 2014. 2. The applicant enlisted in the Regular Army on 12 November 1992. He served as an animal care specialist and animal care NCO. He served continuously on active duty through several reenlistments in various assignments. He was promoted to pay grade E-6 on 1 February 2007. 3. A TEB print screen, dated 8 July 2009, shows he submitted a transfer of Post-9/11 GI Bill benefits to his spouse, son, and daughter, with a transfer beginning date of 1 August 2009. 4. On 18 May 2011, he enlisted indefinitely until 30 November 2015, his retention control point (RCP) of 23 years. 5. On 22 June 2011, he signed a DD Form 2648 (Pre-separation Counseling Checklist for Active Component Service Members) stating he anticipated retiring on 1 December 2012. He indicated he desired counseling on educational benefits and he was referred to the education center. 6. Orders Number 025-0002, dated 25 January 2012, released him from active duty for the purpose of retirement, with an effective date of 30 November 2012, after completing 20 years and 19 days of net service. 7. After his retirement orders were published, he submitted a DA Form 4187 (Personnel Action), dated 13 July 2012, wherein he requested an exception to policy (ETP) through his chain of command for the service remaining required to transfer the Post-9/11 GI Bill benefits as he was unable to meet the service remaining requirement due to his retention control point. The ETP was approved on the same day. 8. On 14 October 2015, an advisory opinion was received from HRC, Section Chief, Finance and Incentives Team, recommending disapproval. The opinion stated: a. On 12 April 2006, the applicant enlisted for a 6 years with an expiration term of service (ETS) of 11 April 2012. b. On 8 July 2009, he requested TEB; however, his Career Counselor correctly rejected his TEB request on that same day due to insufficient retainability. His ETS at that time was 11 April 2012; however, he needed an ETS of 7 July 2013 or later to meet the 4 year service obligation. c. On 18 May 2011, he reenlisted indefinitely until 30 November 2015, his Retention Control Point (RCP) of 23 years from his basic active service date of 12 November 1992. Because he was in his reenlistment window he could not extend up to his 20 year point of 30 November 2012. He had to reenlist up to his RCP of 30 November 2015. Reenlisting up to his RCP did not prevent him from requesting a voluntary retirement date before the RCP. d. On 22 June 2011, one month later, he attended a Pre-Separation Counseling and signed a DD Form 2468 stating he anticipated retiring on 30 November 2012. He later completed a DA Form 2399 (Voluntary Retirement) requesting a retirement date of 30 November 2012. e. On 8 December 2011, he requested TEB again; however, his Career Counselor correctly rejected his TEB request on 8 March 2012 because he already had an approved retirement date of 30 November 2012 and could not fulfill the TEB service obligation of his RCP of 30 November 2015 (the RCP date overruled the 4-year TEB service obligation). f. On 25 January 2012, his retirement order was published with a voluntary retirement effective date of 30 November 2012. His retirement order was published before the Career Counselor made a final TEB rejection determination on 8 March 2012. g. On 28 June 2012, he requested TEB again. His Career Counselor initially pended his TEB request on 12 July 2012, but later another career counselor incorrectly approved the TEB request on 25 July 2012 with an incorrect TEB obligation end date of 27 June 2016. Not only was the TEB incorrectly approved, the TEB obligation end date was also incorrect. If he had not had the approved voluntary retirement date he would have been approved for TEB with a TEB obligation end date of 30 November 2015 (his RCP of 23 years). Although the Career Counselor erred in approving the TEB request, he was still ineligible for TEB due to the approved retirement date of 30 November 2012. h. On 16 October 2013, their office received an inquiry from the Department of Veterans Affairs about the applicant not fulfilling the TEB obligation end date. Their office rejected his TEB request because he did not fulfill the TEB service obligation. Their office should have also rejected his TEB request because he was not eligible for TEB because he already had an approved retirement date of 30 November 2012, which would have prevented him from fulfilling the TEB obligation end date. i. He made himself ineligible for TEB when he requested retirement with a retirement effective date before the projected TEB obligation end date. 9. On 4 November 2015, he responded to the advisory opinion. He stated: a. He disagreed with the advisory opinion from HRC. He has coordinated with Congressman John Carney’s office, along with Senator Jeanne Shaheen in order to seek their support for him to receive the Board’s approval to appear in person. He had fulfilled all the requirements require to transfer his Post-9/11 benefits to eligible dependents. He made every reasonable attempt to ensure that his benefits were transferred to his dependents. b. The Army has conceded that there was some confusion that existed at Army Education Centers on the proper procedures to implement the program. However, after 1 November 2009, the Board presumed that program managers had received appropriate guidance and information and that all Soldiers were properly briefed on the program. He was deployed when he transferred his benefits. Upon his return from deployment in 2009, he was assigned to Dover Air Force Base where he served the remainder of his career. He never received a briefing regarding the TEB. Whatever briefing the Army conducted regarding the TEB program after November 2009 missed him. At no point following his initial election to transfer benefits did he think he would have any problems. c. He was never informed of any rejection of his TEB request. He is now aware that the TEB is a retention tool. It would seem prudent for Career Counselors to contact Soldiers who were eligible for reenlistment. At that time he was not in his reenlistment window and was not notified that his window would open with a TEB option. Nothing in the TEB web page indicated that he should have reenlisted or that he should contact a Career Counselor or a reenlistment NCO. d. According to DTM 09-300 he was not required to incur a 4-year service obligation. He became retirement eligible in November 2012. He reenlisted indefinitely on 18 May 2011, at no point was he counseled regarding the TEB. He was not counseled during his pre-separation nor when he requested retirement about the TEB. e. While he has struggled to find a step-by-step process for the TEB workflow he found a notice from the Camp Zama Army Education Center which indicated Career Counselors were no longer the approving officials for TEB actions. Clearly there was a problem with that role if the Army saw fit to change it. It further stated that Career Counselors were still responsible for notifying Soldiers of required service obligations and eligibility to process exceptions to policy; however, he was never notified of his TEB denial. f. In December 2011, he had to retake a course. Since he had already taken the course once his tuition assistance would not cover the cost. He was told he could use his Post-9/11 GI Bill benefits to cover the cost. At that point he went back to the TEB site to adjust the transferred portion to his children to reflect the one month he had used. It was not a new request but an alteration to the initial request. To his best recollection, at that time his TEB was still in a submitted status. g. When his retirement orders were published he was not aware that his TEB was rejected; however, a delay of over two months seems excessive. He was not informed of the rejection at any time. He was informed that his initial request in 2009 was never processed and because he had an approved retirement date it was too late to make the transfer. h. He contacted his local Career Counselor in June 2012, and he knew nothing about the TEB and he could not help him. He contacted MSG F___ in San Antonio, TX, who sympathized with his situation. According to HRC she incorrectly approved his TEB. i. His initial TEB request should have been approved or, at a minimum, he should have been contacted and offered an opportunity to reenlist for the required period. That period would not have precluded him from retiring in November 2012. Even if that was not the case, had he been informed that he was required to serve an additional 7 months and 8 days to receive the TEB benefit, he would have done so. He was never informed of any action required of him to have his TEB approved. He went through the last 3 years of service believing that his children would receive the much-needed benefit. 10. He provided letters of support indicating he transferred his educational benefits and that he was not informed of any additional requirement on his part. 11. 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. a. A Soldier must currently be serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent(s) on or after 1 August 2009. b. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. c. A Soldier may only transfer to eligible dependents. To be considered an eligible dependent, the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible dependent status upon turning age 21 or at marriage. Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program. The Department of Defense (DOD), the Army, and the VA initiated a public campaign that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. g. A Soldier must initially request to transfer benefits using the DOD TEB online database. The TEB online database was operational on 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access. The respective dependent must then submit an application for VA educational benefits (VA Form 22-1990e) to request to use the benefits. h. Changes to the amount of months allocated to dependents can be made at any time, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation. If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 12. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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 the individual: (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. 13. The policy further 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. 14. Army Regulation 601-280 (Army Retention) states that a Soldier’s individual reenlistment opportunity window opens 15 months from ETS date and ends at the Soldier’s ETS date. 15. Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. It states the Director, ABCMR, will manage the ABCMR day-to-day operations. The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he was never contacted after his initial TEB request informing him that he needed to do anything further. He further contends he never received any counseling regarding the requirement of the TEB request. He provides third-party statements confirming his contentions. 2. He initially applied for the transfer of benefits on 8 July 2009; however, his request was denied on the same day due to insufficient retainability. His ETS at that time was 11 April 2012 and he was not in his reenlistment window. He needed an ETS of 7 July 2013 or later in order to meet the required service obligation. 3. On 18 May 2011, he reenlisted indefinitely until 30 November 2015, his RCP of 23 years. Because he was in his reenlistment window, he could not reenlist or extend up to his 20 year point of 30 November 2012, he had to reenlist up to his RCP of 30 November 2015. 4. On 22 June 2011, one month after he reenlisted, he completed a DD Form 2648 indicating he anticipated retiring on 1 December 2012. 5. On 8 December 2011, he requested TEB again; however, his career counselor rejected his TEB request on 8 March 2012, because he had an approved retirement date of 30 November 2012, and he could not fulfill the TEB service obligation of his RCP of 30 November 2015. 6. On 25 June 2012, his retirement orders were published with a voluntary retirement date of 30 November 2012. His retirement orders were published before the Career Counselor made a final TEB rejection determination of 8 March 2013. 7. After his retirement orders were published, he requested TEB again. His Career Counselor initially pended his TEB request on 12 July 2012, but later another Career Counselor incorrectly approved the TEB request on 25 July 2012, with an incorrect TEB obligation end date of 27 June 2016. 8. Although a Career Counselor incorrectly approved the TEB request, he was ineligible for TEB based on his approved retirement date of 30 November 2012. He made himself ineligible for TEB when he requested retirement effective date before the projected TEB obligation end date. 9. The applicant continued to serve until he retired in November 2012. His faithful service and his sincerity are not in question. However, the applicant was serving on active duty when the program was implemented in August 2009. He remained in an active status for 3 years prior to his retirement. He had ample time to verify that his application was submitted and approved and to ensure his compliance with the TEB service obligation. 10. The requirements of this program are set in the law and any changes to this law are not within the purview of this Board. There is neither an error nor an injustice in his case and, as such, he is not entitled to the requested relief. 11. While there may have been some confusion during the early stages after the implementation, significant measures were taken to disseminate the transferability of unused Post-9/11 GI Bill benefits many Soldiers. The DOD, the VA, and the Army conducted public campaigns that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer. 12. Although the Office of the Deputy Chief of Staff, G-1 determined that individuals should not be granted relief based on unawareness of the law, program, rules, or procedures this office later determined, as an exception to policy, that individuals who left the service during the implementation phase (first 90 days of the program) could be granted relief. The applicant's last active status date was 30 November 2012 which was well beyond 90 days of the program's implementation. 13. His contentions and third-party statements provided do not amount to compelling evidence that he was unaware of the program obligations. 14. With respect to the personal hearing, his request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X______ _X_______ _X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130019755, dated 6 August 2014. _______ _ 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. ABCMR Record of Proceedings (cont) AR20150001964 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001964 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1