IN THE CASE OF: BOARD DATE: 24 January 2017 DOCKET NUMBER: AR20150014232 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: 24 January 2017 DOCKET NUMBER: AR20150014232 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 family member(s) prior to his retirement. _____________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: 24 January 2017 DOCKET NUMBER: AR20150014232 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 transferred his unused educational benefits to his family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states before retiring he was told that if he switched from the Montgomery GI Bill to the Post-9/11 GI Bill, he could later transfer his educational benefits to his dependents. The Department of Veterans Affairs (VA) is now telling him that he needed to transfer the benefits while he was still on active duty. He believes he was improperly briefed on the TEB process and this is precluding his dependents from utilizing the benefits. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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, with 5 years of prior Army National Guard service, enlisted in the Regular Army on 4 October 1989 with immediate reenlistments and/or extensions in 1991, 1995, 1997, and 2000. 3. He completed a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) on 4 February 2009 and requested counselling to include counselling for educational benefits. 4. The applicant retired effective 31 August 2009 with 20 years, 8 months, and 3 days of creditable active duty and 5 years and 19 days of inactive service. 5. An advisory opinion was obtained from the U.S. Army Human Resources Command, Chief, Army Education Incentives. It was recommend the applicant's request to transfer Post-9/11 GI Bill education benefits be approved with the Chief stating: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of 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. b. Based on the details below, we recommend administrative relief for [the applicant] as he was on terminal leave and then retired within 90 days of program implementation, and met other TEB requirements. c. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left service during the 90-day implementation phase were not fully aware of the requirement to transfer prior to leaving military service. d. The applicant had at least 6 years of active duty, did not have a negative action flag at the time of his retirement, and would not have incurred a TEB service obligation; therefore, had he requested TEB during the implementation phase and prior to retirement, his TEB request would have been approved. 6. A copy of the advisory opinion was forwarded to the applicant. There is no evidence he responded. REFERENCES: 1. Public Law 110-252 established the legal limitations on the transferability of unused Post-9/11 GI Bill benefits. 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. 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 any member of the Armed Forces on active duty on or after 1 August 2009 who requests transfer of their entitlement to educational assistance must: a. be eligible for the Post-9/11 GI Bill; b. have 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 c. have 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 the maximum amount of time allowed by such policy or statute; or d. be or become retirement eligible during the period from 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 service or 20 qualifying years of Reserve service. No additional service is required for retirement eligible service members. 3. The policy further states the Secretaries of the Military Departments will provide active service 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. a. DOD established its criteria for eligibility and transfer of unused educational benefits to eligible family member on/or about 22 June 2009. b. A Soldier must currently be on active duty or 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. c. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children. d. A Soldier may only transfer to eligible dependents. To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible dependent status upon turning age 21 or at marriage. Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS); the child will lose eligibility status upon less than full-time status or graduation. Once the benefits are transferred, children may use the benefits up to age 26. e. A Soldier must agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. Soldiers who are qualified for retirement do not incur any additional service obligation. f. A Soldier must have no adverse action flag. DISCUSSION: 1. The applicant completed his preseparation counselling 4 months prior to the official date of the release of the TEB criteria, was on terminal leave on the date of implementation of TEB, and retired within 30 days of program implementation. 2. He was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill without incurring any additional obligated service. 3. As noted in the advisory opinion, had his TEB application been processed prior to retirement, his TEB request would have been approved without any additional service obligation being required. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014232 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014232 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2