BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150006025 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 the following: * an exception to policy to transfer his Post-9/11 GI Bill education benefits to his other (two) dependents * a personal appearance before the Board 2. The applicant states, in effect: a. He is a special forces noncommissioned officer with 24 years of service who reenlisted to meet the criteria for the Post-9/11 GI Bill. He retired in 2010 and qualified for 36 months of the Post-9/11 GI Bill education benefits. He planned to transfer his education benefits to his three children. He has attempted to transfer benefits from one child to another on the MilConnect website, but he was not allowed to transfer the benefits to all three children. He has spoken to several individuals within the Department of Defense (DOD), Department of Veterans Affairs (VA), and U.S. Army Human Resources Command (HRC) with no resolution. Therefore, he was advised to submit a claim to the Army Review Boards Agency (ARBA). b. He has three children; only one, Axxxxx (his oldest), is currently eligible for the Post-9/11 benefits. All of his children are in the Defense Enrollment Eligibility Reporting System (DEERS) and are eligible. However, he cannot transfer benefits to his other children (ages 18 and 15) on the website. This is the error that needs correcting. In 2010, while departing from the service, he was told to allocate all 36 months to his oldest child and he could change/transfer those months later. The information was incorrect. He did what he was told and allocated all 36 months in one child's name. He did not allocate any for his other children. Now, in 2015 he can't transfer any benefits to his other children. c. He understands that he can use the benefits himself; however, he does not need them. His oldest daughter is now married and does not need the benefits. His son (Rxxxxxx) who is 18 years of age (and eligible) currently needs a certificate for registration to begin his college education. He does not have the ability to transfer the benefit to his son online. His primary reason for reenlisting was to pay for his children's college education. d. According to the Transfer of Education (TEB) Acknowledgements, specifically “b” and “I” of the TEB clauses that he agreed to, he is entitled to change the monthly benefits at any time, until exhausted. The TEB acknowledgments state the following: (1) "I am eligible for the Post-9/11 GI Bill, the program I am applying to transfer." (2) "I understand I may transfer up to 36 months (or my remaining months of eligibility, whichever is less) of my education benefits to spouse and/or children, and can modify or revoke my election at any time." (3) "I understand that my spouse may use the benefits immediately and children (ages 18-26) after I have served 10 years." (4) "I understand and agree to remain in the Armed Forces for the period required. I understand that failure to complete that service may lead to overpayments by the VA for any payments made. (Service documentation will remain on file with the Service)." (5) "My conversion to the Post-9/11 GI Bill is irrevocable and may not be changed. However, I retain the right to change or modify months of entitlement at any time until they are exhausted." e. The Post-9/11 GI Bill policy/law should be analyzed for the possibility of cases in which a scenario could occur. For instance, one child may join the military, attain a scholarship, marry, or become deceased. Therefore, they would not require the benefits. In those cases (like his), if the service members did not allocate (while on active duty) at least 1 month in each of the children's accounts, the other children should not be ineligible for benefits because of that error. The service member should be allowed to transfer the benefits to them at a later date, as per the TEB Acknowledgements and Post-9/11 GI Bill law. 3. The applicant provides copies his MilConnect website "screen shot" and six emails written between him and HRC. 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. The applicant enlisted in the Regular Army on 19 September 1985. He served continuously on active duty through several reenlistments until he was honorably retired on 31 March 2010. 3. He provided copies of the following: a. A MilConnect website "screen shot" showing all of his children were enrolled in DEERS, he allocated 36 months of the Post-9/11 GI Bill benefits to Axxxxx Bxxxxx (child), and the TEB Acknowledgements. The screen shot shows his request was approved on 9 September 2009. b. Five emails written between him and HRC on/for: (1) 4 December 2014 – in which he advised HRC that he was attempting to transfer his Post-9/11 benefits from one child to another, but he couldn't make the transfer. At the suggestion of a person he spoke with on the telephone, he decreased the months of one child (Axxxxx) to 1 month in hopes that the remaining months (35 months) would default back to him which would allow him to give them to his son. As of 4 December 2014 that change had not occurred online. He requested advice on the action he needed to take or to whom he could speak about resolving the problem. (2) 11 December 2014 – in which HRC advised him that once he had transferred at least 1 month of benefits to a dependent, he could change the number of months allocated at any time after retirement. He couldn't transfer to a new dependent (one that did not already have at least 1 month transferred) after retirement because he did not allocate at least 1 month of benefits to his son prior to retirement. (3) 11 December 2014 – in which he advised HRC that he understood the process. He should have allocated at least 1 month to each of his other children’s account while on active duty; however, he was told to allocate all the months to his oldest child's account and that he could change (transfer) those months at a later time. He didn't need the benefits and his oldest daughter only needed some of it. Therefore, he wanted to transfer some to his son and possibly the remaining months to his third child. (4) 11 December 2014 – in which HRC advised him that the Army did not have the legal authority to grant an exception to policy that would allow veterans who were retired/separated to transfer education benefits to those dependents who were not allocated benefits prior to a Soldier's retirement/separation. (5) 1 April 2015 – in which he advised HRC that according to the clauses he agreed to, service members are entitled to change the monthly benefits at any time until exhausted. He was going to submit a request through ARBA. (6) 1 April 2015 – in which HRC advised him that he could modify and revoke the benefit at any time, including after retirement/separation. However, the policy stated that a Soldier could only execute a transfer of education benefits while serving on active duty or in the Selected Reserve (SELRES). 4. In an advisory opinion, dated 22 June 2015, the Chief, Finance and Incentives Team, HRC, recommended disapproval of the applicant's request to transfer Post-9/11 GI Bill education benefits. The HRC official stated: a. Pubic 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 limited eligibility to transfer unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the SELRES on or after 1 August 2009. b. Based on the foregoing details, they did not recommend administrative relief for the applicant because he did not provide evidence showing he attempted to transfer educations benefits to his dependents, other than his oldest child, prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits. c. On 8 September 2009, the applicant requested the transfer of 36 months to Axxxxx Bxxxxx (child) only and zero months to Rxxxxxx Bxxxxx (child) and Kxxxxxxx Bxxxxx (child). The TEB website will allow a submission to process when the number of months transferred is a total of between 1-36 months. The TEB website will not allow a submission to process when more than 36 months is entered in the "Trans Months" column. No policy existed that required the transfer of all 36 months as stated by the applicant. His TEB request was approved on 9 September 2009. d. On 4 December 2014, the TEB website shows the applicant reduced the number of months from 36 months to 19 months for Axxxxx Bxxxxx (child). Because he hadn't transferred at least 1 month to Rxxxxxx Bxxxxx (child) or Kxxxxxxx Bxxxxx (child) before retiring, he couldn't make them eligible for TEB by transferring at least 1 month while in a retired status. e. A Solider must initially request to transfer benefits on the DOD's 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 was automatically relayed to the VA. The respective dependent must then submit an application for VA education benefits, VA Form 22-1990E (Application For Family Member To Use Transferred Benefits), to request to use the benefits. The applicant claims he registered for the transfer of education benefits while he was still actively participating in the service; however, only proof has been provided showing a transfer of education benefits to Axxxxx Bxxxxx (child). f. Changes to the amount of months allocated to dependents can be made at any time, to include once a service member leaves military service, provided the service member allocated at least 1 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 the applicant to transfer any benefits to his dependents other than Axxxxx Bxxxxx (child). 5. The advisory opinion was provided to the applicant on 10 July 2015 for acknowledgement/rebuttal. He did not respond. 6. On 29 June 2009, the 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 approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, has at least 10 years of service in the Armed Forces (active duty and/or SELRES) 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 service for the maximum amount of time allowed by such policy or stature; or is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013 with the completion of 20 years of active service or 20 qualifying years of Reserve service. 7. The policy further states the Secretaries of the Military Department will provide active duty participants and members of the Reserve Components with qualifying active service individuals pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain record for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 8. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. 9. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. With respect to the applicant's request for an exception to policy to transfer his Post-9/11 GI Bill education benefits to two additional dependent children: a. Per information he received, he requested to allocate 36 months of the Post-9/11 GI Bill benefits to his oldest child, Axxxxx Bxxxxx. The request was approved on 9 September 2009. At the time he did not transfer at least 1 month to his other two children, Rxxxxxx Bxxxxx and Kxxxxxxx Bxxxxx. He was honorably retired on 31 March 2010. b. He reduced the number of months of education benefits for Axxxxx Bxxxxx on 4 December 2014 from 36 months to 19 months in hopes of transferring the remaining benefits to his college bound son. He was unable to transfer any benefits to his son and possibly to his other child because he had not transferred at least 1 month to either of those children before he retired. c. In previous cases, the Office of the Deputy Chief of Staff, G-1, has opined that although significant measures were taken to disseminate information on the transferability of unused Post-9/11 GI Bill benefits many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer at least 1 month of the education benefits to each eligible dependent prior to leaving military service. d. His last day in an active status was 31 March 2010. He, in effect, contends that he was not aware of the requirement to transfer at least 1 month of education benefits to his other eligible children prior to retirement; therefore, none of the required steps to transfer benefits to them were taken. e. Notwithstanding the advisory opinion to deny relief, based on the foregoing and as a matter of equity, his records should be corrected to show he transferred 1 month of education benefits to Rxxxxxx Bxxxxx and Kxxxxxxx Bxxxxx under the TEB provision of the Post-9/11 GI Bill and that his request was approved on 9 September 2009 (the date of his initial transfer). 2. With respect to his request for a personal appearance before the Board; 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 warranted to serve the interest of equity and justice in this case. BOARD VOTE: ___X_____ ___X_____ __X___ 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 should be corrected by showing he submitted a request to transfer 1 month of educational benefits to each of his other two dependent children under the TEB provision of the Post-9/11 GI Bill and his request was approved effective 9 September 2009, provided all other program eligibility criteria are 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. ABCMR Record of Proceedings (cont) AR20150006025 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006025 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1