SAMR-RB 12 May 2017 MEMORANDUM FOR Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20150017849 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 04 May 2017, in which the Board members recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by showing that he transferred 1 month of his education benefits to his youngest son under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 12 September 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017849 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 BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017849 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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017849 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 elected transfer of his educational benefits to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he would like to transfer his GI Bill educational benefits to his youngest son for college attendance. He was not informed by his command that he had to do this before leaving the Army. His discharge was very informal and there was no out-processing, so he was not informed about this requirement. He was never counseled that he was required to make changes to his GI Bill benefits while still in uniform. He would have done so if he had been notified by his command. 3. The applicant provides no additional evidence. 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. On 1 October 2012, the applicant was honorably discharged from the U.S. Army Reserve in the rank of first lieutenant. 3. In the processing of this case, an advisory opinion was obtained from the Chief, Army Education Incentives Branch, U.S. Army Human Resources Command, dated 4 October 2016. The advisory official recommended disapproval of the applicant's request. The opinion stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, this law 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 6 years in active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the TEB website, http://milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. b. On 14 November 2011, the applicant requested to transfer 36 months of educational benefits to his oldest son, 0 months to his youngest son, and 0 months to his spouse. His TEB request was approved on 15 November 2011 with a TEB service obligation of 14 November 2011. All of his dependents were listed as eligible in the Defense Enrollment Eligibility Reporting System on 14 November 2011. c. The applicant had nearly 1 year to review, update, or modify his TEB distribution to his dependents before his separation effective 1 October 2012. d. Because he hadn't transferred at least 1 month of educational benefits to his other dependents before separating, he cannot now make them eligible for TEB while in a retired status per Title 10, U.S. Code, section 3319(f)(f). Changes to the amount of months allocated to dependents can be made at any time, to include once you leave military service, provided the Soldier allocates at least 1 month of benefits to the respective dependent prior to separation. If the Soldier fails to transfer at least 1 month of benefits to a dependent, the Soldier may not transfer benefits to that dependent after leaving military service. The TEB website shows no action was taken by the applicant to transfer any benefits to his dependents other than his oldest son. e. 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 Department of Veterans Affairs initiated a comprehensive 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 education benefits. This information was available to the applicant for 3 years until his separation effective 1 October 2012. His TEB request was effective 11 November 2011, which was not within the 90-day implementation phase. f. The Army Education Incentives Branch recommends denial of administrative relief because the applicant did not provide evidence showing he attempted to transfer educational benefits to his dependents other than his oldest son prior to leaving military service. 4. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He responded and stated: a. He did transfer educational benefits to his oldest son while he was still a Reserve service member in order for him to attend college. It is accurate that he did not attempt to transfer any benefits to any other family members (his wife has a degree and his youngest son was 14 years old at that time and they had made no plans for college yet). b. His separation on 1 October 2012 via a letter from DOD was a complete surprise to him and his command. He had no reason to suspect he was being separated, having received a waiver from the Secretary of Defense stating the potential reason for his separation due to his lack of a 4-year degree (he has a 2-year degree) was waived by the Secretary, and so he was to be retained. The DOD letter was without any knowledge of his or his command; therefore, he did not know he had 1 year to make changes to his TEB distribution before his separation. c. He was never informed of these changes as to how the TEB was managed or administered. He also was not formally separated in any capacity other than the DOD letter he received. There was no out-processing of any kind. He was unaware of the need to move benefits or of restrictions on the use of his Post-9/11 GI Bill benefits. d. He was expressly forbidden to use or take part in any public or social media venues due to the classified nature of his work and the security clearance he possessed. It is fair to say he was unaware of the changes in law, program, rules, and procedures. He was never advised of the need to allocate months to other family members before separation as he had no warning, nor was he formally out-processed because his unit and he had no idea DOD was separating him. e. He served faithfully for many years and earned those benefits. He understands there were rule changes that he was unaware of and he would have certainly made the needed adjustments to his TEB distribution in a timely manner had he know he was to be separated. REFERENCES: 1. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of 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 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. 2. 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 3. DOD, the Army, and the 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 educational benefits to dependents. 4. Title 10, U.S. Code, section 3319(f)(1), states 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. DISCUSSION: 1. The evidence shows he requested transfer of 36 months of educational assistance under the TEB provision of the Post-9/11 GI Bill to his oldest son, 0 months to his youngest son, and 0 months to his spouse in November 2011. 2. The evidence confirms: a. His TEB request was approved on 15 November 2011 with a TEB service obligation of 14 November 2011. b. He had nearly 1 year to modify his TEB distribution to other dependents before his separation on 1 October 2012. c. The TEB website shows no action was taken by the applicant to transfer any benefits to his dependents other than his oldest son. 3. By law, since he didn't transfer at least 1 month to his other dependents before separating, he cannot now make them eligible for educational benefits. 4. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. This information was available to the applicant for 3 years prior to his separation on 1 October 2012. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017849 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017849 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2