IN THE CASE OF: BOARD DATE: 27 October 2016 DOCKET NUMBER: AR20150014129 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: 27 October 2016 DOCKET NUMBER: AR20150014129 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: 27 October 2016 DOCKET NUMBER: AR20150014129 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, an exception to policy to transfer his Post-9/11 GI Bill education benefits to his dependent son under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he was unaware he had to complete the election to transfer education benefits to his son prior to his separation from service. He claims he was told in a briefing prior to his retirement that he had 15 years to use or transfer the benefit. Therefore, he waited until his son graduated high school to attempt to transfer the benefit. At no time prior to or after his retirement date was he informed of a change in policy or the passage of a law, which enabled the change. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Certificate of Eligibility 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 retired from the Regular Army on 30 June 2010 in the rank/grade of staff sergeant (SSG)/E-6 after completing over 20 years of active duty service. 3. During the processing of this case, the U.S. Army Human Resources Command (HRC) provided an advisory opinion, dated 20 July 2016. The advisory official recommended disapproval and stated that Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, subsection 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 90 days of qualifying Post-9/11 GI Bill service, six years in Active Duty or Selected Reserve status, no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the TEB website, http://milconnect.dmdc.mil. The service Member must transfer all the benefits before they separate or retire. The advisory official further states: a. 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 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. b. The TEB incentive does not require a formal one-on-one counseling, group counseling, or a reduction in pay to make a Service Member eligible. A Soldier acquires TEB eligibility as stated above and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation. c. As of 30 June 2010, 49,349 Soldiers were approved for the TEB and 6,068 Soldiers were rejected. d. In April 2011, the ABCMR and the Department of the Army G-1/Directorate of Military Personnel Management/Enlisted Professional Development Branch (Post-9/11 GI Bill Policy Proponent) agreed that any Soldier who retired after 1 August 2009 through the next 90 days or was on terminal leave during the first 90 days and subsequently retired may not have received sufficient information during this timeframe to submit a TEB request. This timeframe is referred to as the "TEB 90-day implementation phase." Any Soldier retiring within this timeframe would have to submit a request for relief through the ABCMR. Any Soldier retiring after this timeframe is considered as having sufficient time to have had access to TEB incentive information. The applicant retired on 30 June 2010, which was not within the TEB 90-day implementation phase; therefore, he had sufficient time to research the TEB incentive. e. The applicant could have obtained the TEB eligibility criteria through the Department of Defense (DOD) Directive –Type Memorandum 09-003 (dated 22 June 2009), Attachment 2, paragraph 3a(3), the Department of the Army (DA) Post-9/11 GI Bill Policy Memorandum, paragraph 17a(4), DOD, DA, and HRC websites, and various briefings at the installation level. He could have used these resources available to him to research the TEB incentive requirements. f. All of the TEB information available to him included the requirement to transfer while either in Active Duty or Selected Reserve status and the possible requirement to serve an additional service obligation. Specifically, the DA Post-9/11 GI Bill Policy Memorandum, paragraph 17g(1) stated, "Time for Transfer. A Soldier 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." g. The applicant stated on DD Form 149 (Application for Correction of Military Record), that he was never informed on the change in policy or law, which mandated TEB submission prior to retirement. There has been no change in policy or law. The Post-9/11 GI Bill Policy Memorandum and Public Law 110-252 have always required a Soldier to transfer entitlement while serving as a member of the Armed Forces. The applicant submitted his Certificate of Eligibility from the VA, which confirmed he submitted VA Form 22-1990 (Application for VA Education Benefits), electing to convert (not transfer) from the Montgomery GI Bill-Active Duty (MGIB-AD) to the Post-9/11 GI Bill. This submission was for the applicant’s Post-9/11 GI Bill usage. His election to convert from MGIB-AD to Post-9/11 GI Bill was for his Post-9/11 GI Bill usage only, not for a transfer to dependents. h. For a successful TEB request submission, the applicant would have been required to submit a TEB request through the TEB website first. Later, when his dependent completed high school or turned 18, his dependent would be required to apply through the VA website for usage. i. Their office sympathizes with the applicant and his dependents; however, the time for him to make himself aware of TEB eligibility criteria and process was during his time in the U.S. Army. TEB is an incentive, not a benefit. Regretfully, he did not research or submit a TEB request during this timeframe as required by law and policy. 4. On 28 July 2016, a copy of the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal. He did not respond. 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 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 already retirement eligible or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013. A service member is considered retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of reserve service. DISCUSSION: 1. The DOD, VA, and U. S. Army conducted extensive public campaigns that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. 2. The applicant was on active duty when the program was implemented in August 2009. He continued on active duty until his separation on 30 June 2010. This was more than sufficient time to request transfer of his Post 9/11 GI Bill benefits to his son. 3. The requirements for transferring Post 9/11 GI Bill benefits are set in law. A change to the 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) AR20150014129 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014129 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2