BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150012512 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: 28 July 2016 DOCKET NUMBER: AR20150012512 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. BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150012512 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 to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. He needs his TEB updated correctly. In spring 2009, he elected to change from the Montgomery GI Bill to the Post-9/11 GI Bill. The primary reason for switching to the Post-9/11 GI Bill was to have the opportunity to transfer some of his benefits to his children. He went online and submitted all the information needed for them to be able to utilize this. He submitted everything and thought he had completed the process. It even got to the point where the online system was asking which college his sons were attending. He could not fill that out at the time because they were still in junior high school. b. His oldest son recently graduated from high school and will be starting college in August (2015). During the enrollment process, they filled out the necessary forms with the Department of Veterans Affairs (VA) at the college and received a letter back that stated he had not transferred any benefits. He knows he did everything he needed to do and remembers specifically that he was happy he had gotten it done because of the service remaining requirement. It was in 2009 and he was eligible for retirement in 2011; he was just in time to complete the 2 years of service required to qualify. c. He is not sure where the disconnect is; he went through this procedure with two other senior noncommissioned officers (NCOs) and has kept in contact with them. He is the only one that has had these problems and does not understand why his did not work and theirs did. The Post-9/11 GI Bill is a great tool to help afford for your children to go to college and not put parents or them as young adults in as much debt. He spent time and effort to transfer these benefits and "assumed" everything was ready to go. He does not know what went wrong and needs help to set this straight. 3. The applicant provides no additional evidence. 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 11 July 1991. He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 September 2003. 3. His record contains a DD Form 93 (Record of Emergency Data), dated 25 September 2008, wherein he indicated that he was married at the time and had three dependent sons. One son was born on 1 August 1996, one on 29 September 1997, and one on 25 April 2004. 4. He was honorably retired on 31 July 2011 in the rank of SSG and placed on the Retired List on 1 August 2011. He completed 20 years and 20 days of creditable active service. 5. In the processing of this case an advisory opinion was received on 9 May 2016 from the Chief, Finance and Incentives Branch, U.S. Army Human Resources Command (HRC). The advisory official recommended disapproval of the applicant's request and stated, in part: a. Public Law 110-552 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. The law limits the 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 who have at least 6 years in an active duty or Reserve status, have no current negative action against them, commits to the service obligation, and transfers benefits through the TEB. b. 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. 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. Soldiers receive counseling on all GI Bills including the Post-9/11 GI Bill benefit and TEB incentive at various venues throughout the Soldier's career to include during the last year before separation or retirement. c. A Soldier acquires TEB eligibility and makes dependents eligible by awarding at least 1 month to the dependent via the TEB website and fulfilling the TEB service obligation. The applicant had 2 years to research and obtain the eligibility criteria for the TEB incentive through Department of Defense (DOD) and other channels before his retirement on 1 August 2011 (i.e., 31 July 2011). He had a vast array of information available to him and was not restricted to the VA website to obtain this information. All of the TEB information available to him would have included the requirement to transfer while serving on active duty and the requirement to serve an additional service obligation. d. The VA confirmed the applicant submitted VA Form 22-1990 (Application for VA Education Benefits) to convert his Montgomery GI Bill to the Post-9/11 GI Bill on 14 September 2009. The submission was for his usage only, not to transfer the benefit to his dependents. The VA also confirmed the applicant began using the Post-9/11 GI Bill on 13 July 2011, had used 23 months and 1 day, and had 12 months and 29 days remaining for his usage. e. The applicant stated he submitted everything in the spring of 2009 and thought he had completed the process. The system asked what college his son was going to, and he could not fill it in at the time because his son was in high school. For a TEB request to be submitted successfully, the applicant would have been required to submit through the TEB website first. Later, when his dependents would be eligible he would have been required to apply through the VA website for usage. It appears the applicant did not follow the required actions during that time or in the remaining 2 years before his retirement. f. He stated he submitted the TEB request, assumed it was approved, and that he had fulfilled the 2-year TEB service obligation. One should not assume approval of any request. Even if one assumes the applicant submitted his TEB request on the same day he submitted the VA Form 22-1990 to the VA on 14 September 2009, he would have incurred a 2-year TEB service obligation from that date to 13 September 2011 and not 2 years from the program's start date of 1 August 2009. The applicant voluntarily retired on 31 July 2011 but could have remained on active duty until his 23-year retention control point of 1 August 2014. Prior to his retirement, he had time to inquire about the TEB process and TEB service obligation. 6. On 11 May 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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 education benefits to family members if: a. They 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. They 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 benefit up to age 26. c. They allocate at least 1 month of benefits prior to separation. Changes to the amount of months allocated to dependents can be made at any time, to include once they leave military service, provided the service member allocates at least 1 month of benefits prior to separation. If the service member allocates 0 months and subsequently leaves military service they are not authorized to transfer unused benefits. 3. A Soldier not serving on active duty or as a member of the Selected Reserve who subsequently requests the transfer of unused benefits to family members should not be granted relief based on unawareness of law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, DOD, and VA initiated public campaign that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of benefits. 4. 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 on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent. DISCUSSION: 1. Notwithstanding the applicant's contention that he submitted a request under the TEB in spring 2009, the evidence of record confirms he was fully eligible to transfer his educational benefits under the TEB prior to his retirement date of 31 July 2011 but there is no evidence that he did so. He did not convert his Montgomery GI Bill to the Post-9/11 GI Bill until 14 September 2009 and would have been eligible to transfer his benefits to his dependents only after it was converted to the Post-9/11 GI Bill. He would have incurred a 2-year service obligation from the date he submitted his TEB request. 2. 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 over 2 years after the program was implemented. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012512 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012512 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2