BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010153 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 BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010153 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 to amend the decision of the Army Board for Correction of Military Records as set forth in Docket Number AR20140014424 on 26 May 2015. __________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. BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010153 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, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision set forth in Docket Number AR20140014424 on 26 May 2015. Specifically, he requests approval of an exception to policy to transfer his unused education benefits to his daughter under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in a self-authored letter dated 8 June 2015: a. He was informed by the Maryland Army National Guard (MDARNG) Military Retirement Counselor a month before his retirement on 31 December 2009 that he should start the transfer process about a year before his daughter graduated from high school. He attempted to do so in June of 2014, one year before graduation. The system would not let him process the transfer. He contacted the Department of Veterans Affairs, who informed him that he would have to appeal to this Board for correction. b. The military may have disseminated the relevant information; however it appears it was not understood at all levels. He was never informed as to the requirement to transfer his benefits before retirement. c. The Boards letter even states there may have been some confusion during the early stages of the implementation of the TEB policy. He retired on 31 December 2009, which was right after the policy was implemented. d. Per paragraph 6 of the Board’s letter, the military departments were responsible to "document accordingly and maintain" records of pre-separation counseling related to Post-9/11 GI Bill benefits. Per phone conversation with the MDARNG G1 section, no records exist of any retirement briefings from 2009. e. He submits that confusion during the early implementation period and incorrect information from his Retirement Counselor were the cause for his actions. This confusion and misinformation should not be held against his ability to transfer his benefits to his daughter. f. He left active duty in November 2007. He was not approved for the Post-9/11 GI Bill until November 2009. He was not on active duty at the time of retirement. Therefore, he could not have transferred his benefits to his daughter. 3. The applicant provides no other evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140014424 on 26 May 2015. 2. Following prior service in the Regular Army, the applicant was appointed as a Reserve commissioned officer of the Army on 16 December 1981, with concurrent appointment in the MDARNG. 3. The MDARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 11 October 1991. This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 4. He served in Kuwait from 25 October 2006 to 11 October 2007. 5. He was honorably discharged from the ARNG on 31 December 2009 and transferred to the Retired Reserve. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was credited with completing 40 years, 9 months, and 6 days of total service for pay purposes. 6. A review of his records reveals no evidence and he does not provide evidence that shows he transferred, or attempted to transfer, his unused education benefits to his dependents in accordance with the TEB provision of the Post-9/11 GI Bill. REFERENCES: 1. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 2. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. 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. 3. 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. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post 9/11 GI Bill benefits. DISCUSSION: 1. The applicant's request to transfer his unused education benefits to his daughter under the TEB provision of the Post-9/11 GI Bill was carefully considered. 2. The evidence of record shows he was discharged from the ARNG on 31 December 2009, after completing 40 years, 9 months, and 6 days of total service for pay purposes. 3. Public Law 110-252 established legal requirements on the transferability of unused education benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 4. The applicant was fully eligible to transfer his educational benefits prior to his date of discharge; however, he did not do so. The program was implemented in July 2009. There is no evidence he attempted to transfer his Post-9/11 GI Bill educational benefits to his family members while still a member of the Selected Reserve. 5. The requirement to transfer the benefit 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 the applicant failed to transfer the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010153 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010153 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2