IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150014676 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. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. District Court for the Eastern District of Virginia, Alexandria Division. 2. On 20 July 2015, this case was remanded to the ABCMR to address the applicant's eligibility to transfer education benefits (TEB) under the Post-9/11 GI Bill. The applicant's motion for remand stated: a. The Army failed to provide proper counseling regarding his benefits; reliable sources at the Army provided him with incomplete, inaccurate, and false information; and that the Army failed to provide notice that failure of the applicant to elect to transfer his benefits while on active duty would constitute a waiver of his right to transfer those benefits in the future. b. The Secretaries of the Military Departments were required to provide eligible service members with individual counseling on the benefits to be afforded under the Post-9/11 GI Bill. The statute provides that 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. The applicant was eligible to transfer his education benefits to his spouse and children, but he never received the individual counseling required under Department of Defense (DoD) Directive-Type Memorandum (DTM) 09-003, Post-9/11 GI Bill. 3. The applicant provides the Memorandum Opinion and Order issued by the U.S. District Court for the Eastern District of Virginia, Alexandria Division. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110020812 on 16 February 2012 and in ABCMR Docket Number AR20130004885 on 14 November 2013. 2. The applicant did not provide any new evidence. However, the U.S. District Court for the Eastern District of Virginia, Alexandria Division, opined that since the Army failed to provide the applicant with the required pre-separation counseling and, thus, the decision to deny his application to correct his record meets the "arbitrary, capricious, or contrary to law" standard. The court granted the applicant's Motion for Summary Judgment. 3. The applicant retired from the Army, effective 1 April 2010, in the rank of lieutenant general/O-9. 4. A DA Form 137-2 (Installation Clearance Record) shows he was cleared by the Education Center on 20 January 2010. 5. In the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY. The opinion recommended disapproval and stated: a. Section 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. Relief is not recommended unless the applicant can provide evidence showing he attempted to transfer unused education benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits. b. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, DoD, and the Department of Veterans Affairs (VA) initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits. The applicant's last day in the service was 31 March 2010, which was not within 90 days after the program's implementation. c. A Soldier must initially request to transfer benefits on the DoD's TEB online database. The TEB database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed to the VA access. The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken. 6. 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 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 the maximum amount of time allowed by such policy or statute; or c. 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. 7. 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. 8. 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. The purpose of this policy is to implement the Post 9/11 GI Bill in order to enhance the Army’s recruiting and retention programs. The policy further states, in pertinent part, that the Commanding General, U.S. Army Human Resources Command, will: a. Provide the day-to-day management of the Post-9/11 GI Bill. b. Provide for training and reference materials to installation Army Education Center personnel and the U.S. Army Recruiting Command. c. Provide, as needed, counseling to all Soldiers with inquiries regarding their education entitlements. d. Conduct mandatory education benefits counseling for all Soldiers separating from the Army as required by Title 10, U.S. Code section 1046, no later than 150 days before separation date. Counselors advise Soldiers but have no authority to make benefit determination. The VA is the administrator of the Post-9/11 GI Bill program and is responsible for establishing eligibility and payment amounts. Record the following counseling statement on DA Form 669 after completion of mandatory counseling: "In accordance with Title 10, U.S. Code section 1046 (Mandatory Benefits Counseling), I have received individual counseling concerning my Veteran's educational benefits." e. Require Soldier's signature attesting to the receipt of counseling. 9. Army Regulation 600-8-101 (Personnel Processing (In-, Out-, Soldier Readiness, and Deployment Cycle)) in effect at the time, states in pertinent part, that as the focal point for installation or community-level out-processing, the process control station will designate the stations through which each Soldier must process, do appropriate coordination with other installation and or community-level out-processing stations, provide any required special guidance, and ensure that each Soldier has processed properly before clearing him or her for departure. The DA Forms 137-1 (Unit Clearance Record) and 137-2 identify the out-processing stations requiring clearance from all Soldiers departing on permanent change of station or transitioning from the Active Army. 10. The DoD, military departments, and the VA conducted a public campaign plan on the TEB that generated communications through military, public, and social media venues. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement, but did not attempt to do so. The program was implemented in July 2009. The applicant retired on 1 April 2010. 2. The 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, he retired over 8 months after the program was implemented. However, there is no evidence which shows he attempted to transfer his education benefits to his dependent(s) prior to his separation. 3. Notwithstanding the above, the applicant contends he was never informed that he must transfer education benefits while still on active duty. The U.S. District Court opined that the Army failed to provide the applicant with the required pre-separation counseling and there is no evidence in the available records that would contradict the court's opinion. 4. The Court’s factual findings and resulting order compel the Board’s decision in the applicant’s favor. In view of the foregoing, the Board must grant the applicant the requested relief for the purpose of complying with the Court’s order. BOARD VOTE: ____x___ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Because of the Court's order, the Board has no choice but to recommend 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 dependent(s) 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. ABCMR Record of Proceedings (cont) AR20150014676 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150014676 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1