IN THE CASE OF: BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150004898 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 separation, to transfer at least one month of his unused education benefits to his daughter, in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: * he has been working on this issue since last year; he has run into many dead ends and received multiple responses on how he should proceed * he finally got ahold of officials at the U.S. Army Human Resources Command (HRC), who determined he had been misinformed on the proper process of requesting the TEB * he was not informed that a minimum of one month had to be given to each eligible dependent in order for the months to be interchangeable * at the time, his son was going to be the one utilizing his benefits, so he ended up receiving all the months up front until his daughter was ready to use them later * he has heard from multiple sources that misinformation regarding the TEB has been a common issue; he hopes that misinformation is being addressed to keep people from going through the trouble he went through * he understands this can take over a month to get sorted out through the Board, so he just wants to note that his daughter will soon be 23 years of age; he would like back-dated eligibility for the months lost trying to get this resolved 3. The applicant provides no additional documentation in support of his request. 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 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 prior enlisted service in the U.S. Army Reserve (USAR) and Army National Guard (ARNG), the applicant was appointed a warrant officer in the Texas ARNG (TXARNG) on 19 December 1990. He served in the ARNG until 8 March 2003. 3. The applicant resumed his service in the USAR on 9 March 2003, entered active duty on 1 February 2004, and was promoted to the rank of chief warrant officer four (CW4) on 7 April 2007. 4. In anticipation of his release from active duty, he underwent pre-separation counseling on 14 September 2010. As part of his pre-separation counseling, he checked the "Yes" block in item 13a (Education/Training – Educational Benefits) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Members). Items that contain a "Yes" checkmark represent those services and benefits for which the separating service member (or spouse) desires further information or counseling. 5. Orders C-11-090878, issued by HRC on 22 November 2010, ordered his release from active duty effective 16 February 2011, with reassignment to the Individual Ready Reserve (IRR) the next day. These orders were amended by Orders C-11-090878A01, issued by HRC on 16 February 2011, which amended his effective separation date from 16 February 2011 to 16 June 2011. 6. The applicant was honorably released from active duty on 16 June 2011 and reassigned to the IRR. 7. In the processing of this case, an advisory opinion was obtained from the Chief, Finance and Incentives Team, HRC on 22 June 2015. This official recommended disapproval of the applicant's request for relief, citing the following: a. Public Law 110-252 establishes the legal limitations on the transferability of unused Post-9/11 GI Bill education benefits. Section 3020 of this law limits the eligibility to transfer unused education benefits to those members of the Armed Forces serving on active duty or as members of the Selected Reserve on or after 1 August 2009. Based on the following details, the Finance and Incentives Team did not recommend administrative relief for the applicant because he did not provide evidence that shows he attempted to transfer education benefits to his dependents, other than his son, prior to leaving military service, or that shows he was given false information by a reliable source about the rules for transferring education benefits. b. On 10 August 2009, CW4 (Applicant) requested the transfer of 36 months to his son only, and 0 months to his spouse and daughter. The TEB website will allow a submission to process when the number of months transferred is a total between 1 and 36 months. The TEB website will not allow a submission to process when more than 36 months is entered in the "Trans Months" column. Therefore, since the TEB submission for 10 August 2009 processed, it is reasonable to assume CW4 (Applicant) only transferred months to his son and not to his spouse or daughter. His TEB request was approved on 10 August 2009. c. On 10 February 2015, the TEB website shows CW4 (Applicant) reduced the number of months from 36 months to 1 month for his son. Because he hadn't transferred at least one month to either his spouse or daughter before leaving the Selected Reserve (SELRES) in the U.S. Army, he couldn't make them eligible for the TEB by transferring at least one month while in a retired status. d. On 4 February 2015, CW4 the applicant’s daughter emailed this office requesting assistance regarding TEB eligibility. On 9 February 2015, this office informed her that CW4 (Applicant) hadn't allocated at least one month to her before departing SELRES status, so she was ineligible for the TEB. On 17 February 2015, she emailed this office stating CW4 (Applicant) had made her eligible. On 18 February 2015, this office asked her for documentation showing a transfer had been made to her. On 18 February 2015, she emailed this office stating her brother and mother had received TEB and asked this office for a copy of the TEB form; no other documentation was provided regarding a transfer to the daughter. e. During the course of the above email, this office was made aware that CW4 (Applicant) had been given a four-year TEB service obligation with a TEB Obligation End Date (OED) of 10 August 2013, which was correct for the service displayed in his record at the time of TEB approval on 10 August 2009. Because he was released from SELRES on 16 June 2011 and entered the IRR on 17 June 2011, he didn't fulfill the four-year service obligation. So, on 9 February 2015, this office emailed CW4 (Applicant) requesting he provide documentation showing prior-service (e.g., ARNG qualifying service) that may increase his number of qualifying years prior to 1 August 2009 and would allow the adjustment of the TEB OED. When he transferred from the ARNG to the USAR, it was his responsibility to ensure the ARNG service was updated in his Army Military Human Resource Record. After receiving appropriate documentation showing sufficient qualifying service in the ARNG, this office adjusted his TEB OED from 10 August 2013 to 10 August 2009 (his TEB request date). So, CW4 (Applicant) fulfilled his TEB service obligation. However, he only transferred education benefits to his son, not to his spouse or daughter. f. A Soldier must initially request to transfer benefits on the Department of Defense (DOD) TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for Department of Veterans Affairs (VA) access. The respective dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to request to use the benefits. CW4 (Applicant) claims he registered for the transfer of education benefits while he was still actively participating in the service; however, the only proof that has been provided shows he transferred education benefits to his son. g. Changes to the amount of months allocated to dependents can be made at any time, to include once the service member leaves military service, provided the service member allocates at least one month of benefits prior to separation. If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits. The TEB website shows no action was taken by CW4 (Applicant) to transfer any benefit to his dependents other than his son. 8. The applicant was provided a copy of the HRC advisory opinion on 10 July 2015, for information and to allow him the opportunity to submit comments or a rebuttal; however, he did not respond. 9. The Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members on 22 June 2009. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her 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 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. 10. DOD policy further states the Secretaries of the Military Departments will provide active duty participants individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 11. The Army released the Post-9/11 GI Bill Implementation Policy on 10 July 2009, which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. 12. The DOD, Army, and the Department of Veterans Affairs (VA) initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. 13. Public Law 110-252, section 3020, limits eligibility to transfer unused educational 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. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her family members. 14. Changes to the amount of months allocated to family members can be made at any time, to include once a service member leaves military service, provided the member allocates at least 1 month of benefits prior to separation. If the service member allocates zero months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. DISCUSSION AND CONCLUSIONS: 1. The applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his release from active duty. However, the evidence of record shows that, for whatever reason, he only transferred the benefits to his son; he did not transfer any educational benefits in the TEB online database to his spouse or daughter. 2. Changes to the number of months allocated to family members cannot be made unless the service member allocates at least 1 month to each eligible family member. If the service member allocates zero months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 3. Notwithstanding his sincerity, DOD, VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues. The program was implemented on 1 August 2009. The applicant was released from active duty on 16 June 2011. The information was published well in advance with emphasis on the criteria. 4. The requirement to transfer the benefits while a member is on active duty is embedded in the law. As the applicant did not transfer or verify the transfer of his benefits to his children while serving on active duty as required by law, there is an insufficient evidentiary basis for granting his requested relief. 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 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. ABCMR Record of Proceedings (cont) AR20100025000 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004898 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1