IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150012918 BOARD VOTE: ____x____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150012918 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his dependents prior to his retirement, provided all other program eligibility criteria are met. _____________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: 1 September 2016 DOCKET NUMBER: AR20150012918 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 dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. He was an Active Guard Reserve (AGR) Soldier in the Kentucky Army National Guard (ARNG) from June 1989 until he resigned from the program in June 2010. He deployed to Iraq from May 2006 through April 2007, at which time the Post-9/11 GI Bill did not exist. At the time of his retirement, AGR Soldiers serving under Title 32 orders were not authorized the Post-9/11 GI Bill so he did not know he was eligible based on his Title 10 deployment. b. He was never properly counseled, thus was unaware of the requirement to transfer his benefits prior to retirement. He became aware that he was eligible for the benefits in December 2010 and contacted the Department of Veterans Affairs (VA) in an attempt to transfer the benefits in January 2011, only to discover he had to have done so prior to retirement. He was advised to apply to the Army Board for Correction of Military Records (ABCMR), which he did in September 2012, but was informed by the Board that he needed to exhaust all administrative remedies with the National Guard Bureau. c. He is including a copy of an information paper regarding his VA benefits he received while his unit was preparing for deployment to Iraq in 2010 and nowhere in it does it state he was required to transfer the benefits prior to retirement. He was misinformed by the VA and the Kentucky National Guard Education Office, thus he didn't request the transfer of benefits prior to retirement 3. The applicant provides: * Headquarters, Kentucky ARNG, memorandum, dated 18 June 2007, subject: Notification of Eligibility for Retired Pay at Age 60 * Department of Military Affairs, Boone National Guard Center, Orders 333-814, dated 29 November 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * ARNG Retirement Points History Statement, dated 26 January 2011 * Department of Military Affairs, Boone National Guard Center, Orders 020-821, dated 20 January 2011 * VA document titled, "Post-9/11 GI Bill: Transferability" * prior DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 19 March 2013 * ABCMR letter, dated 11 April 2013 * National Guard Bureau memorandum, dated 3 August 2015, subject: Recommend Response for Army Board for Correction of Military Records (ABCMR) Case – Transfer of Post-9/11 GI Bill Benefits for (Applicant) 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 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 ARNG on 4 May 1987. 3. His DD Form 214 shows he entered active duty in a Title 32 status on 2 June 1989. He was honorably released from active duty on 27 January 2006 due to completion of a period of AGR service and ordered to active duty in another status. 4. Department of Military Affairs, Boone National Guard Center, Orders 124-144, dated 4 May 2007, amended Orders 025-150, previously issued by the same organization on 25 January 2006, which ordered him to active duty under the authority of Title 10, U.S. Code. The amended orders changed his period of active duty to read from 28 January 2006 through 26 July 2007. 5. His DD Form 214 corroborates his contention that he was ordered to active duty in support of Operation Iraqi Freedom under the authority of Title 10, U.S. Code, on 28 January 2006 and was honorably released from active duty on 3 May 2007. 6. He entered active duty in an ARNG AGR status under Title 32, U.S. Code, on 4 May 2007. 7. Department of Military Affairs, Boone National Guard Center, Orders 333-814, dated 29 November 2010, released him from active duty effective 30 November 2010 by reason of voluntary retirement and placed him on the Retired List on 1 December 2010. 8. On 19 March 2013, he applied to the ABCMR, requesting correction of his records to show he elected transfer of educational benefits to his dependents under the TEB provision of the Post-9/11 GI Bill, stating he was unaware of the need to make the transfer prior to retirement. At that juncture, he had been on the Retired List for over 2 years. 9. On 11 April 2013, he was informed via letter from the ABCMR that his application was returned without Board action for failing to exhaust all administrative remedies available through the National Guard Bureau. 10. National Guard Bureau memorandum, dated 3 August 2015, subject: Recommend Response for ABCMR Case – Transfer of Post-9/11 GI Bill Benefits for (Applicant), states: a. The intent of the memorandum is to provide a recommendation for the applicant's case to the ABCMR wherein he is requesting transfer of Post-9/11 GI Bill benefits to his dependents. The Chief, Education Services Branch, National Guard Bureau, recommended granting administrative relief. b. When the applicant retired on 30 November 2010, AGR service under Title 32 was not eligible for Post-9/11 GI Bill benefits. Public Law 111-377 became effective on 1 August 2011 and retroactively qualified all AGR service after 10 September 2001 for Post-9/11 GI Bill benefits. While he earned eligibility for Post-9/11 GI Bill benefits during his deployment in 2006 through 2007, his AGR status from 2001 through 2010 was not creditable at the time of his retirement and he may not have received appropriate counseling during his separation and out-processing. c. Title 38, U.S. Code, section 3319(f), and Department of Defense (DOD) Instruction 1341.13, subject: Post-9/11 GI Bill, stipulate that an individual must transfer entitlement while serving as a member of the Armed Forces. Transferred entitlements may be modified or revoked at any time, but individuals may not add family members after retirement or separation. d. A massive public campaign plan generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of education benefits. Nonetheless, many ARNG Soldiers left the service after the program implementation date without being fully aware of the requirement to transfer the benefits prior to leaving the military. 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 that 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 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: 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 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 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." 6. Effective 1 October 2011, Public Law 111-377 expanded the categories of Soldiers eligible to receive educational benefits under the Post-9/11 GI Bill to include full-time National Guard Soldiers serving on active duty orders under Title 32, U.S. Code, on or after 11 September 2001. Previously, only those Soldiers serving on active duty under Title 10, U.S. Code, or members of the Selected Reserve were eligible. DISCUSSION: 1. The applicant's request for correction of his records to show he elected transfer of educational benefits to his dependents under the TEB provision of the Post-9/11 GI Bill was carefully considered. 2. He was eligible to receive educational benefits under the Post-9/11 GI Bill by virtue of his active duty service under Title 10, U.S. Code, as a member of the ARNG deployed to Iraq from 28 January 2006 through 3 May 2007. 3. Although the National Guard Bureau refers to Public Law 111-377 passed on 1 October 2011 and its inclusion of full-time National Guard Soldiers serving on active duty orders under Title 32, U.S. Code, after 11 September 2001 as eligible to receive Post-9/11 GI Bill benefits in their memorandum, it has no bearing on this request. The applicant was fully eligible for Post-9/11 GI Bill educational benefits based on his mobilization under Title 10, U.S. Code. 4. On 1 August 2009, Public Law 110-252, section 3319, which provides the eligibility requirements necessary to transfer unused educational benefits to family members, went into effect. The law 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 dependent on or after 1 August 2009. 5. After his deployment, he was released to his ARNG unit where he continued to serve in an ARNG AGR status. It was not until 30 November 2010 that he was honorably released from the ARNG for the purpose of retirement. He was placed on the Retired List on 1 December 2010. 6. He had ample time between 1 August 2009 and 1 December 2010 to seek advice on the TEB program and apply to transfer his educational benefits to his dependents. The first evidence of his inquiry into the matter or attempt to transfer benefits is his application to the ABCMR on 19 March 2013, more than 2 years after his retirement. 7. DOD, the 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 more than 1 year after the program was implemented. 8. 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) AR20150012918 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012918 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2