IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150012297 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: 9 August 2016 DOCKET NUMBER: AR20150012297 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: 9 August 2016 DOCKET NUMBER: AR20150012297 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, a waiver of his unfulfilled service obligation, thereby allowing him to transfer his education benefits to his daughter under the Transfer of Education Benefits (TEB) provisions of the Post-9/11 GI Bill. 2. The applicant states: * he is a retired Veteran as of 31 March 2013 [sic], and is trying to transfer his Post-9/11 GI Bill educational benefits to his daughter * he was completely unaware of the additional time obligations required to transfer his educational benefits * it was his understanding that if he remained on active duty for 10 years or more, he would be eligible * he submitted his retirement packet on 1 April 2014; he has spent a total of 25 years on active duty * if he were aware of the additional 4 month requirement, he would have pulled his retirement packet and changed it to another date * he was told by the retention section of his unit to transfer the benefit while he was still on active duty * not once did anyone mention to him the obligation to extend his contract and change his retirement date * he was going off what he read on the Department of Veterans Affairs (VA) website * these benefits would be of great assistance to his daughter; otherwise, attending college will be an immense financial strain on his family * if there is any way that he can remedy this issue, he is willing 3. The applicant provides a self-authored statement; his TEB acknowledgements from the MilConnect website; and a letter from the Department of Defense Manpower Data Center (DMDC), dated 5 June 2015. CONSIDERATION OF EVIDENCE: 1. Following 4 years of prior active service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 30 September 1997. 2. The applicant was honorably retired on 31 March 2014, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12, by reason of sufficient service for retirement. 3. The applicant provides: a. A printout from MilConnect that shows he acknowledged the TEB eligibility criteria and agreed to serve in the Armed Forces for the period required. b. A letter from the DMDC, dated 5 June 2015, which shows he was approved to transfer 36 months of his unused education benefits to his dependent daughter, contingent upon his fulfillment of his obligation ending on 23 July 2014. 4. In the processing of this case, an advisory opinion was obtained on 28 April 2016, from the Section Chief, Finance and Incentives Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY. The advisory official opined: a. Recommend disapproval of the applicant's request to waive the Post-9/11 GI Bill TEB service obligation. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, section 3020, Public Law 110-252, 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, have at least 6 years on active duty or in a Selected Reserve status and have no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the TEB website. All benefits must be transferred before the service member separates or retires. b. Administrative relief is not recommended based on the following: (1) The Post-9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The option to transfer education benefits to a dependent is considered an incentive, not a benefit. The transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for service nor a transition benefit. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. (2) The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post 9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the Department of Veterans Affairs on VA Form 22-1990. A Soldier acquires TEB eligibility as stated in paragraph 1 and makes dependents eligible (awards at least one month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation. (3) On the TEB website, the Soldier must acknowledge and click on nine statements before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. (4) The applicant had four years to research the eligibility criteria for the TEB incentive. (5) The applicant should have obtained the TEB eligibility criteria through the DOD-Type Memorandum 09-003 (dated 22 June 2009), Attachment 2, paragraph 3a(3)(c); the Department of the Army Post 911 GI Bill Policy Memorandum, paragraph 17a(4)(c); DOD, DA, and HRC websites; and various briefings at the installation level. He was not limited to information on the VA website as he claimed. (6) The applicant had four years to submit a TEB request before he requested retirement in May-June 2013. He failed to research the TEB incentive requirements accordingly. (7) If the applicant had submitted the TEB request anytime between 1 August 2009 - 31 March 2013 (at least one year before his requested retirement date of 31 March 2014), he would have incurred and fulfilled the one-year TEB service obligation. However, he didn't submit a TEB request during this timeframe. (8) In May - June 2013, the applicant submitted a request for retirement with a projected retirement effective date of 31 March 2014. By doing so, he made himself ineligible for the TEB incentive because he would have been required to serve beyond 31 March 2014. (9) On 16 July 2013, the applicant's retirement request was approved, retirement orders were published with a retirement effective date of 31 March 2014, and he was provided copies. Again, he should not have requested TEB because he would not have been able to fulfill the one-year TEB service obligation. (10) The applicant submitted a TEB request on 24 July 2013. Because he had already requested and been approved for retirement, he should not have requested TEB also since he would have been required to fulfill a one-year TEB service obligation from the TEB request date. (11) The U.S. Army Human Resources Command GI Bill Team approved the TEB request on 13 September 2013 with a TEB service obligation of 23 July 2014 (viewable in the upper left-hand corner of the TEB website for the applicant to see). As of the TEB approval date, his retirement order had not yet been published in the interactive Personnel Electronic Records Management System; therefore, the HRC GI Bill Team did not know of the applicant already committing to the retirement date of 31 March 2014 and his inability to fulfill the one-year TEB service obligation. Had the HRC GI Bill Team known of the approved retirement and his inability to fulfill the TEB service obligation, the TEB request would have been rejected immediately. This does not relieve the applicant of his responsibility to know the TEB eligibility criteria and of his inability to fulfill the TEB service obligation. (12) Throughout the TEB process, the applicant had the responsibility to check the TEB website for the status of his TEB request and any TEB service obligation (viewable in the upper left-hand corner of the TEB website). Upon the 13 September 2013 TEB approval update with the one-year TEB service obligation, he should have recognized he would be unable to fulfill the TEB service obligation. The applicant should have contacted the HRC GI Bill Team immediately to report his approved retirement date. If he had done so at that time, the TEB request would have been rejected immediately. He failed to inform HRC of his inability to fulfill the TEB service obligation, as required. (13) As of 31 March 2013, at least 144,108 Soldiers had been approved for TEB and 21,688 had been rejected for TEB. (14) On 29 January 2015, the applicant accessed the TEB website after his retirement and revoked benefits for two dependents and increased benefits to 36 months for his daughter. At that time, he again would have also seen the TEB Obligation End Date of 23 July 2014 in the upper left-hand corner of the TEB website. Also, he again should have realized he had not fulfilled the TEB service obligation and was ineligible for TEB. He did not inquire with the HRC GI Bill Team at that time regarding TEB eligibility. Instead, he continued allowing his dependent to proceed with processing a request to the VA for education benefits he should have never requested in July 2013. (15) On 5 June 2015, the applicant contacted the HRC GI Bill Team stating his daughter received a letter from the VA denying usage of TEB due to the applicant not fulfilling the TEB service obligation. At that time, the HRC GI Bill Team explained to the applicant how he should not have requested TEB due to his retirement, and upon TEB approval, he should have informed HRC of his retirement approval. Due to him not fulfilling the TEB service obligation, the HRC GI Bill Team rejected TEB. (16) This office sympathizes with the applicant and his dependents; however, the time for him to make himself aware of TEB eligibility criteria was before he submitted the retirement request. Instead, he waited four years after he was eligible for TEB before he submitted the TEB request. At this time, he was beyond a reasonable timeframe for him to fulfill the one-year TEB service obligation. 5. On 10 May 2016, the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He replied and stated that if the Army wants Soldiers to interpret what is on the TEB website then it needs to be rewritten. If the reenlistment non-commissioned officer hadn't told him, he would never have known. There is no information stating the requirement to transfer at a certain time. REFERENCES: 1. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. The law 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. 2. On 22 June 2009, the Department of Defense (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 and document accordingly. 4. 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. 5. The DOD, the Army, and the VA initiated a public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent TEB. 6. Title 38, U.S. Code, section 3319, prohibits service members who are no longer serving on active duty 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 served in the Regular Army from 30 September 1997 to 31 March 2014. 2. The TEB provisions were implemented in July 2009, with an effective date of 1 August 2009. It appears the applicant requested transfer of his unused education benefits to his daughter on 24 July 2013, thus incurring a TEB service obligation date of 23 July 2014. 3. The applicant retired on 31 March 2014, prior to fulfilling his TEB service obligation. 4. The applicant's service is not in question; however, since the applicant had been on active duty since the program was implemented in August 2009, and then for over 4 years after the program was implemented, he had sufficient time to submit his application and to verify his service obligation requirement. There is no evidence he exercised due diligence. 5. In addition, the DOD, VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues. The information 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 did not retire until well after the program was implemented. 6. The applicant retired prior to fulfilling his service obligation of 23 July 2014 based on his approved TEB application. Therefore, he did not meet the eligibility criteria to retain his TEB incentive. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012297 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012297 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2