BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017202 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 BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017202 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 his Post-9/11 GI Bill benefits to his family member(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. BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017202 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 an exception to policy to transfer his remaining educational benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states the message pertaining to the transfer of benefits was released while he was on transition leave. He was not given the opportunity to pass his educational benefits to his children. If he had been given such an opportunity, he would have done so. He retired on 1 September 2009. 3. The applicant provides his retirement orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 31 August 2009. 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 enlisted in the Regular Army on 1 August 1989 and he held military occupational specialty 92G (Food Service Sergeant). 3. He served in a variety of stateside and overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 4. He retired on 31 August 2009 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 September 2009. He was credited with completing more than 20 years of active service. 5. An advisory opinion was received from the U.S. Army Human Resources Command on 15 September 2016 in the processing of this case. An advisory official recommended approval of the applicant's request to transfer his Post 9/11 GI Bill education benefits to his family member(s). This official stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, § 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. Based on the details below, HRC recommends administrative relief for the applicant as he was on terminal leave and retired within 90 days of program implementation, and met other TEB requirements. 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. b. He had at least six years of active service, 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. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the 90-day implementation phase. The U.S. Army, Department of Defense (DOD), and Department of Veterans Affairs (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 the TEB. The applicant's last day in the service was 31 August 2009 which was within the 90-day implementation phase. In previous cases, the ABCMR granted relief based upon the terminal leave or retirement date within the 90-day implementation phase. 6. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit comments. He did not respond. REFERENCES: On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family member(s). 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 service or 20 qualifying years of Reserve service. DISCUSSION: 1. The applicant was fully eligible to transfer his educational benefits to his family member(s) under the TEB provision of the Post-9/11 GI Bill prior to retirement. The program was implemented in August 2009 and he retired on 31 August 2009. He states that prior to retirement he was on transition leave and did not have an opportunity to apply for the transfer of benefits. 2. DOD, the VA, and the Army conducted public campaigns that generated major through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet various criteria to qualify to transfer benefits to an eligible family member. 3. Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefit. This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program's implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling. 4. The applicant's retirement date was 31 August 2009. It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits to family member(s) while serving on active duty and obtain some sort of written confirmation that it was successfully transferred he would have done so. The advisory official recommended approval of the applicant's request to transfer his Post 9/11 GI Bill education 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) AR20150017202 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017202 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2