IN THE CASE OF: BOARD DATE: 12 January 2017 DOCKET NUMBER: AR20150014266 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: 12 January 2017 DOCKET NUMBER: AR20150014266 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: 12 January 2017 DOCKET NUMBER: AR20150014266 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 educational benefits to his dependent child under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. He states he was not properly advised by his Army Reserve unit on how to properly transfer his education benefits to his son. He states he logged on to his Army Knowledge Online (AKO) website and indicated that he wanted to transfer 100 percent of his education benefits to his son. 3. The applicant provides: * Self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 1 August 2013 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. After having prior service in the Regular Army on 1 November 1989, the applicant enlisted in the U.S. Army Reserve (USAR). On 15 December 2009, he was ordered to active duty in support of Operation Enduring Freedom. On 30 September 2011, he was honorably released from active duty. 3. On 1 August 2013, he received his 20-year letter and on 10 January 2014, he was transferred to the Retired Reserve. 4. An advisory opinion was obtained on 24 June 2016 in the processing of this case. The Chief, Finance and Incentives Branch, U.S. Army Human Resources Command (HRC) recommended disapproval of the applicant's request and stated: 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 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. b. The TEB incentive does not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation. c. 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. d. The applicant was transferred from the Selected Reserve to the Retired Reserve on 10 January 2014 which was not within the TEB 90-day implementation phase; therefore, he is considered as having sufficient time to research the TEB incentive. e. The applicant argues that he transferred 100 percent of his education benefits through AKO; however, benefits can only be transferred using the TEB website and can only be transferred in number of months, not percentages. For a TEB request to be submitted successfully, the applicant would have been required to submit a TEB request through the TEB website first. Later, when his dependents completed high school or turned 18, his dependents would be required to apply through the Department of Veterans Affairs (VA) website for usage. This 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 USAR. 5. On 28 June 2016, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. 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 a member of the Selected Reserve on or after 1 August 2009: a. A Soldier must be currently 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). b. 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 to eligible children. c. A Soldier may only transfer to eligible dependents. To be considered an eligible dependent the spouse or child must be enrolled in 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). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense (DOD), and 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. g. A Soldier must initially request to transfer benefits on the DOD TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access. The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. h. Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves 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, he or she is not authorized to transfer unused benefits. 2. On 22 June 2009, 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 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 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. 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. 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. DISCUSSION: 1. The applicant contends, in effect, that his records should be corrected to allow him an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his dependent. 2. The evidence of record shows he was fully eligible to transfer his education benefits under the TEB prior to his retirement on 10 January 2014, but did not do so. He contends his failure to transfer his benefits was based on not being properly "counseled" by his Reserve unit. 3. 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. A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent: (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible. Since the applicant did not transfer his benefits before he retired on 10 January 2014, he is now ineligible to transfer benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014266 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014266 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2