IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150010423 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: 31 May 2016 DOCKET NUMBER: AR20150010423 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. IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150010423 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 correction of his records to show he elected transfer of educational benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: * he applied to transfer his Post-9/11 GI Bill benefits to his children on 2 December 2010 before he retired from the Army National Guard (ARNG) * he is being told the transfer of his educational benefits did not take place * his Department of Veterans Affairs (VA) Form 22-1990E (Application for Family Member to Use Transferred Benefits) shows he received a confirmation number of XXXXX81 * he believed this form was the only one he had to fill out until his children were ready to use the benefits * he didn't attempt to access his benefits until his children were ready to go to college 3. The applicant provides: * VA Form 22-1990E, dated 2 December 2010 * ARNG Current Annual Statement, dated 26 February 2014 * Privacy Act Waiver, dated 9 April 2014 * National Guard Bureau (NGB) letter to his Member of Congress, dated 5 May 2014 * Army Review Boards Agency letter to his Member of Congress, dated 6 May 2015 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. Following prior service in the U.S. Coast Guard Reserve, the applicant enlisted in the ARNG on 31 January 1991. 3. His ARNG Current Annual Statement, dated 26 February 2014, shows he was mobilized with his ARNG unit from 1 July 2007 through 2 June 2008. From October 2009 through 30 January 2011, he was assigned to the Inactive National Guard (ING). 4. He provided a copy of a VA Form 22-1990E showing a submission date of 2 December 2010 and a confirmation number of XXXXX81. The document is unsigned and undated by the applicant, as well as the Armed Forces Education Service Officer. This form does not indicate the TEB process was completed and approved. 5. His NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the ARNG and transferred to the Retired Reserve on 30 January 2011. 6. An NGB letter to the applicant's Member of Congress, dated 5 May 2014, stated the applicant was eligible for the Post-9/11 GI Bill prior to his retirement, but he failed to complete a request to transfer his benefits before he retired from the ARNG on 30 January 2011. The applicant entered a period of service in the ING from 1 October 2009 through 29 January 2011 due to family medical reasons. Periods of service of this type are considered as inactive drilling status and are not included as creditable active service toward retired pay. The applicant unsuccessfully attempted to transfer educational benefits using the VA website on 2 December 2011 while assigned to the ING. His request was unsuccessful because it was not submitted through the appropriate Department of Defense (DOD) website and he was not eligible to make the transfer due to his status in the ING at the time. REFERENCES: 1. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 110-252, House of Representatives, 2642. In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009. Individuals with qualifying active duty service after 10 September 2001, those who served an aggregate period of 90 days to 36 months on active duty or served at least 30 continuous days and were discharged from active duty due to a service-connected disability, were deemed eligible for the Post-9/11 GI Bill. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. 2. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual 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: 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 31 July 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. 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. 4. DOD, the Army, and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. 5. Title 38, U.S. Code, section 3319, prohibits service members who are no longer serving on active duty or as a member of the Selected Reserve from transferring educational benefits. The legislation specifically states "an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed." DISCUSSION: 1. The applicant's request for correction of his records to show he elected transfer of educational benefits to his children under the TEB provision of the Post-9/11 GI Bill was carefully considered. 2. Public Law 110-252, section 3319, which provides the eligibility requirements necessary to transfer unused educational benefits to family members, went into effect on 1 August 2009. It stipulated 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 dependents on or after 1 August 2009. 3. From 1 October 2009 through 29 January 2011, the applicant was a voluntary member of the ING. As such, he was neither serving on active duty nor as a member of the Selected Reserve eligible to transfer his educational benefits to his dependents. 4. Although he provided an incomplete, unsigned copy of an application to transfer his educational benefits submitted on 2 December 2010 while a member of the ING, NGB verified the submission of this application was unsuccessful due to the applicant's use of the incorrect website and his general ineligibility to transfer his benefits due to his ING status at the time of submission. 5. The transferability provision of the Post-9/11 GI Bill was published well in advance with emphasis on the criteria. While there may have been some confusion during the early stages after the implementation, the applicant wasn't transferred to the Retired Reserve from the ING until over 2 years after the program was implemented. 6. The requirements of this program are set in the law and any changes to the law are not within the purview of this Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010423 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010423 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2