BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160000118 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: 13 July 2017 DOCKET NUMBER: AR20160000118 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 allocated 1 month of educational benefits to each of his three remaining dependents on 3 March 2010 * approving his amended application for transfer of educational benefits under the Transfer of Education Benefits provision of the Post-9/11 GI Bill effective 4 March 2010 to show all five dependents were allocated educational benefits of at least 1 month __________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: 13 July 2017 DOCKET NUMBER: AR20160000118 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 Post-9/11 GI Bill Transfer of Education Benefits (TEB) application to show all his dependents listed in the Defense Enrollment Eligibility Reporting System (DEERS) since 2003/2004 are eligible for educational benefits under the TEB provision. 2.  The applicant states his approved retirement date was 31 March 2010. He transferred his educational benefits to take advantage of the newly approved TEB Program. He adds: a.  Although his entire family is named on the TEB website, he eventually realized that only his wife and one son were granted educational benefits. Three other family members are listed but ineligible and do not have a starting date (to use educational benefits). b.  After numerous inquiries to the Department of Veterans Affairs (VA), the Army, and the Department of Defense (DOD), all he received was misinformation. Eventually he was informed that he was ineligible to make corrections or additions since he was no longer serving on active duty. 3.  The applicant provides: * retirement orders * MilConnect TEB homepage printout * DD Forms 1172 (Application for DOD Identification Card and DEERS Enrollment) for his family members * Notice of Disagreement ? Educational Benefits to VA, dated 8 January 2014 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, a chief warrant officer four (CW4)/pay grade W-4, retired for sufficient length of service on 31 March 2010. 3.  With his application, he submitted a copies of his DD Forms 1172 and a milConnect TEB homepage printout with a status date of 4 March 2010. Of the five dependents listed on the TEB, only his spouse and one son were allocated educational benefits. The three other dependents show no allocation, or 0 months. 4.  On 8 January 2014, he filed a notice of disagreement with the VA. He stated that he attempted to correct his record post-retirement to ensure all his children enrolled in DEERS would receive educational benefits. He was informed that because he was not serving on active duty, he could not make corrections or add beneficiaries to his TEB allocation. 5.  During the processing of this case an advisory opinion was obtained from the U.S. Army Human Resources Command. The Chief, Army Education Incentives Branch, recommended denial of the applicant's request to change his 2010 TEB allocation and stated: a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, 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, have at least 90 days of qualifying Post-9/11 GI Bill service, have 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the additional service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. b.  On 3 March 2010, the applicant requested to transfer 9 months of educational benefits to one son and 24 months to his spouse. He did not transfer any benefits to his other three dependents. On 4 March 2010, his request was approved. It is noted that all of his family members listed in DEERS were eligible for educational benefits. c.  There is no available evidence that the applicant tried to transfer benefits to anyone other than his one son and his spouse prior to leaving active duty. Had he designated at least 1 month of educational benefits to each of his family members, he could have later reallocated his benefits as he saw fit. There is no provision to transfer benefits to a family member who was not initially allocated 1 month of benefits. Section 3020 of Public Law 110-252 limits eligibility for TEB to certain members of the Armed Forces who are serving on active duty. d.  An applicant should not be granted relief based on unawareness of the law, program, rules or procedures unless the member left the service during the implementation phase (first 90 days) of the program. 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. As the applicant’s TEB request was effective 3 March 2010, his application (to the ABCMR) is not considered to be within the implementation phase of the program. 5.  The advisory opinion was forwarded to the applicant for his information and an opportunity to respond. He responded on 7 December 2016 and stated: a.  He is a retired CW4 and combat veteran with over 21 years of distinguished military service. His awards include the Legion of Merit and the Bronze Star Medal. His retirement orders are dated 17 June 2009 with a final out-processing date of 29 December 2009 due to terminal leave. His official retirement date was 31 March 2010. During out-processing he was advised he was eligible for the Post-9/11 GI Bill TEB Program if he incurred an additional service obligation. b.  On 2 March 2010 while on terminal leave, he found out he was eligible to convert from the Montgomery GI Bill to the Post-9/11 GI Bill without incurring any additional service obligation. He went to Fort Bragg and questioned Soldier Support Center employees who provided him with a pamphlet. c.  On 3 March 2010, he applied through the DOD TEB website by following the instructions provided in the pamphlet. At no time was he informed, including the information available on the DOD TEB website, that he could only transfer educational benefits to a dependent who was already designated and had been assigned at least 1 month of educational benefits. d.  He returned to the DOD TEB website after his initial application to make modifications but was unsuccessful. Some of his dependents were marked as "ineligible." He then contacted the TEB points of contact, VA representatives, and the Department of the Army multiple times in order to correct his TEB allocations. e.  He feels it is a disservice to him and his family who were not provided access to their rightfully earned educational benefits due to erroneous or a lack of creditable information provided by Soldier Support Centers who are supposed to aid Soldiers during their transition from the military. He states, "No sane person will willfully preclude their children from entitled educational benefits in order to place the financial burden on themselves." f.  The applicant provided pamphlets and a copy of DOD Instruction (DODI) Number 1341.13 (Post-9/11 GI Bill), dated 31 May 2013, for the Board’s consideration. 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 education 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. a.  A member must be currently serving on active duty or as 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 member 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. c.  A member may only transfer to eligible dependents. To be considered an eligible dependent, the spouse or child must be enrolled in DEERS and be eligible for DEERS benefits. Children lose eligible dependent status upon reaching 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 benefits. Once the benefits are transferred, children may use the benefits up to age 26. d.  A memberr must also agree to serve the prescribed additional service obligation based on the time the member had in service on 1 August 2009. e.  A member must have no adverse action flag and have an honorable discharge to transfer the 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 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 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. d.  A member must initially request to transfer benefits using the DOD TEB online database. The TEB online database was operational effective 29 June 2009. Once approved in the TEB online database by the member's service, the approval information is automatically relayed for VA access. The respective dependent must then submit an application for VA educational benefits using a VA Form 22-1990e (Application for Family Member to Use Transferred Benefits). e.  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. 3.  The milConnect DOD TEB Web application shows that once a transfer request is submitted, it continuously shows the status "Submitted" until the transfer is approved or rejected. Once a request is approved, the status will be updated to "Request Approved" and the status date will be set to the date the Service Representative approved the request. An approval form also become available once a TEB request is approved. There is an option to print the approval form so a Soldier can maintain a copy of the approval for his or her personal records. 4.  DODI Number 1341.13 Enclosure 3 (Procedures), paragraph 3 (Transferability of Unused Educational Benefits to Family Members), subparagraph f(2)(a)2, states: An individual may not add family members after retirement or separation from the Military Services…but may modify the number of months of the transferred entitlement or revoke transfer of entitlement after retirement or separation for those family members who have received transferred benefits prior to separation or retirement. DISCUSSION: 1.  The applicant requests correction of his records to show he designated all of his dependents to receive educational benefits under the provisions of the Post-9/11 GI Bill TEB Program. He believes his request is justified because he was not informed that he could not list additional recipients or adjust allocations after he retired. He also states he is entitled to this correction based on his distinguished record of military service, which includes combat service. 2.  Public Law 110-252 limits the 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. 3.  Changes to the number of months allocated to dependents can be made at any time, to include once a Soldier leaves the Army, provided the Soldier allocated at least 1 month of benefits to the respective dependent prior to separation. If the Soldier fails to transfer at least 1 month of educational benefits to a dependent, the Soldier may not transfer benefits to that dependent after leaving military service. 4. It is important to note the Post-9/11 GI Bill is an entitlement for service members based on qualifying years of honorable service. The TEB provision of the Post-9/11 GI Bill is a retention incentive to retain fully qualified Soldiers and compel an additional service commitment to enhance force readiness. 5.  As the applicant received his retirement orders and appears to have started transition leave during the implementation phase of the TEB Program in 2009, the possibility exists that he was not fully aware of the implications of his decision to allocate zero (no) months of benefits to three of his dependents. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000118 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000118 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2