IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150008454 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150008454 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. ______________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. Enclosure 1 IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150008454 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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his family members. 2. The applicant states: a. He was not offered the earned Post-9/11 GI Bill and not given the information or opportunity to transfer his education benefits to his family members. He was released from active duty after service in Iraq and back to Reserve status in July 2008, just a couple of days from the law and information to transfer the benefits under the TEB to family members was released. b. As a Reservist with the Army National Guard (ARNG) and former Marine, his focus was on mission first. It was not even until he completed three tours after 9-11 that he even knew he qualified for the Post-9/11 GI Bill. He was notified about the Survivor Benefit Plan (SBP) election but not the Post-9/11 GI Bill election. c. He was misled into thinking that the Department of Veterans Affairs (VA) education request was the first step to transfer his education benefits. He honestly did not get the information and it was his intent to transfer his education benefits to his son as indicated on VA Form 22-1990 (Application for VA Education Benefits) and VA Form 21-674 (Request for Approval of School Attendance). The fact he completed the form and indicated this was his intent proves his initial wish. His son just graduated high school and could really use this benefit. His son made sacrifices while he was deployed three times; he deserves and earned this benefit. 3. The applicant provides: * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * DA Form 4187 (Personnel Action), dated 24 September 2009 * orders, dated 28 September 2009 * DD Form 2656-5 (Reserve Component SBP (RCSBP) Election Certificate), 6 June 2010 * VA Form 22-1990, dated 20 August 2011 * three VA letters, dated between 9 September 2011 and 20 April 2015 * VA Form 21-674, dated 1 May 2014 * Disabled American Veterans (DAV) Contact Brief sheet * three pages titled Post-9/11 GI Bill Overview 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. Having had prior active service, the applicant enlisted in the Texas ARNG (TXARNG) on 29 July 1998 for a period of 1 year. His expiration of term of service (ETS) was 28 July 1999. 3. On 11 May 1999, he extended his enlistment in the ARNG for 3 years; his new ETS was 28 July 2002. On 2 June 2002, he extended his enlistment in the ARNG for 6 years; his new ETS was 28 July 2008. 4. He was ordered to active duty as a member of his ARNG unit in support of Operation Iraqi Freedom and entered active duty on 4 June 2007. On 24 August 2007, he executed a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) and extended his enlistment in the ARNG for 1 year. His new ETS was 28 July 2009. 5. He was honorably released from active duty on 13 July 2008 to the control of the TXARNG. The DD Form 214 he was issued shows during this period he served in Kuwait/Iraq from 1 September 2007 to 21 May 2008. 6. On 31 January 2009, he completed a DD Form 93 (Record of Emergency Data) wherein it shows at that time he was married and had four dependent children. 7. Orders 271-1047, dated 28 September 2009, issued by the TXARNG, discharged him from the ARNG and assigned him to the Retired Reserve effective 28 July 2009. 8. The NGB Form 22 he was issued shows he completed 20 years, 1 month, and 1 day of total service for retired pay. 9. In the processing of this case an advisory opinion, dated 21 January 2016, was received from the Deputy Chief, Personnel Policy Division, NGB. The advisory official recommended denial of the applicant’s request and opined, in part: a. Public Law 110-252 identifies the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill benefits and established the legal requirements on the transferability of unused benefits. The law limits the transfer of 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. b. The ARNG, Department of Defense (DOD), and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits. Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers were not fully aware of the requirement to transfer prior to leaving military service. c. The purpose of the TEB is to promote retention in the ARNG. For those individuals eligible for retirement on 1 August 2009, no additional service is required. d. The applicant retired on 28 July 2009 without completing a request to transfer his education benefits to his dependents. Disapproval was recommended due to the fact that his ETS and retirement date were both prior to the effective date of 1 August 2009. The applicant did not incur any injustice since the benefit did not exist prior to his retirement. The advisory opinion was coordinated with the NGB Education Services Branch and the TXARNG concurred with the recommendation. 10. In a response to the advisory opinion, dated 17 February 2016, the applicant stated, in part: a. He was requesting an exception to policy in the application of Public Law 110-252. Despite all efforts to disseminate the information to all Soldiers as stated in the advisory opinion, he did not receive notification of the requirements until 2011 in a reply to form submitted by his VA Service Office on 20 September 2011. b. After 9-11, his unit was activated and deployed several times. In 2009, his TXARNG unit was being activated for deployment to the Middle East. Just prior to deployment, the Stop Loss Program was cancelled and he was allowed to leave [the ARNG] on his scheduled ETS date. He was never notified that he would be eligible to receive his Post-9/11 benefits if he waited another 72 hours to retire. c. When his ARNG unit was activated they were mobilized at various locations. Efforts to get official correspondence to him may have easily been misplaced. His unit commanders were more focused on mission readiness and deployment issues rather than disseminating details on educational programs. He did not choose to revoke his eligibility to participate in the Post-9/11 GI Bill and believes the law was developed with an intent of recognizing exceptional military service post 9-11. REFERENCES: 1. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible family member is 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 is or becomes retirement eligible during the period 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. 2. A member of the Armed Forces is eligible to transfer educational benefits to family members if they: a. have eligible family members enrolled in the Defense Enrollment Eligibility Reporting System (DEERS). Children lose eligible family member status upon turning 21 years of age, or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; b. initially request the transfer through the DOD TEB online database. This database was operational on 29 June 2009. Once approved in the TEB database, the information is automatically relayed to the VA. Once the benefits are transferred, children may use the benefits up to the age of 26. 3. Public Law 110-252, section 3020, 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. A Soldier must be serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent. DISCUSSION: 1. Notwithstanding the applicant’s sincerity that he was not made aware of the requirement to be serving on active duty or in the Selected Reserve as of 1 August 2009 to be eligible to transfer his education benefits to family members, DOD, the VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. 2. The evidence of record confirms he was discharged from the ARNG on 28 July 2009 and assigned to the Retired Reserve. The requirement to transfer the benefits while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. As he was not serving in the Selected Reserve on 1 August 2009, he did not meet the criteria to transfer the benefits to his family members. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150008454 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150008454 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2