IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20160000830 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: 7 February 2017 DOCKET NUMBER: AR20160000830 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: 7 February 2017 DOCKET NUMBER: AR20160000830 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, in effect: a. correction of his records to show he made a timely application in July 2009 to transfer his education benefits to his eligible dependents in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill; b. an immediate cancellation of his active duty service obligation currently ending on 30 June 2017; and c. a personal appearance before the Board. 2. The applicant states: * in July 2009, he went to the Department of Veterans Affairs (VA) website and transferred his Post-9/11 GI Bill education benefits to his dependent children * while reviewing his records during his retirement processing, the website did not accurately reflect the previous education benefit transfer * the VA helpdesk and information technology section indicated they could not access July 2009 information 3. The applicant provides a letter to the Army Review Boards Agency (ARBA), a letter of support, and a DA Form 4037 (Officer Record Brief (ORB)) dated 2 September 2015. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve Commissioned Officer of the Army on 13 May 1989 in the rank of second lieutenant. He was ordered to active duty on 20 June 1989, completed his initial qualification training, and was awarded area of concentration (AOC) 67C (Preventive Medicine – Environmental Science), which is currently AOC 72D in the Medical Service Corps. 2. The applicant was promoted to lieutenant colonel (LTC) on 1 September 2005. As of the date of his application, he was assigned to the U.S. Army Public Health Command, Aberdeen Proving Ground, Maryland, as the Environmental Science Officer. 3. The applicant provides: a. A letter to ARBA, dated 3 November 2015, wherein he requests an exception to policy and a cancellation of his active duty service obligation through 30 June 2017 due to his transfer of Post-9/11 GI Bill education benefits to his dependents. He states in July 2009, he went to the VA website and transferred his Post-9/11 education benefits to his dependents. While reviewing his records during his retirement processing, the website did not reflect his previous education benefit transfer. The VA information technology section indicated information from various servers did not correctly transfer to the milConnect website, nor could they access the information. He also indicates he enclosed emails from a member of the U.S. Army Human Resources Command (HRC) Incentives Branch; however, they were not included for review. b. A letter from the applicant's career manager to ARBA supporting the applicant's request, dated 9 November 2015. His career manager provides that the applicant's career field is over-strength and cancelling the service obligation would allow him to start his retirement processing and help size the career field. c. An ORB with an audit date of 2 September 2015, which shows a summary of the applicant's military service and his projected mandatory retirement date (MRD) of 1 July 2017. 4. An advisory opinion was obtained on 11 October 2016, from the Chief, Army Education Incentives, HRC, Fort Knox, KY. This advisory official opined: a. Recommend disapproval of the applicant's request to transfer Post-9/11 GI Bill education benefits. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, 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 on or after 1 August 2009, have at least 6 years on active duty or in a Selected Reserve status and have 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. Administrative relief is not recommended based on the following: (1) On 25 April 2014, the applicant requested TEB. On 28 April 2014, the HRC GI Bill Team approved the TEB request with a TEB service obligation (TEB Obligation End Date) of 30 June 2017. The applicant received a less than four year TEB service obligation due to his MRD of 30 June 2017. On 28 April 2014, the HRC GI Bill Team emailed him to inform him of the TEB approval and of the TEB service obligation. The applicant replied to the email on the same date stating he had previously transferred "education credits" to his sons, G__ and S__, on the "VA website" and that milConnect did not reflect his transfer. He also stated that he was considering retirement options and wanted to know what would happen if he retired prior to the fulfillment of his TEB service obligation. A member of the HRC GI Bill Team responded on 29 April 2014 informing him that if the TEB service obligation wasn't fulfilled, his TEB request would be revoked. (2) On 14 May 2014, the applicant emailed the HRC GI Bill Team Post-9/11 GI Bill group email box stating he had previously transferred in 2009 and inquired about HRC visibility or documentation of his transaction from the VA website. He stated he was in the process of retiring and needed the documentation. On 16 May 2014, a member of the HRC GI Bill Team, responded to his email informing him that education benefits had to be transferred through the DMDC [Department of Defense Manpower Data Center] milConnect website. Since the TEB website didn't show a previous TEB submission, the HRC GI Bill Team member asked him to provide a copy of any documentation (e.g., a screen shot) that would support his statement about a previous TEB submission in 2009. The applicant did not provide further documentation (emphasis added). (3) The applicant claimed on the DD Form 149 (Application for Correction of Military Record) that he transferred his Post-9/11 GI Bill on a VA website; however, benefits can only be transferred using the TEB website. Also, transferability of the Post-9/11 GI Bill is not within the purview of the VA. Each Service Component is responsible for determining TEB eligibility. The applicant also stated he transferred educational credits; however, the Post-9/11 GI Bill can only be transferred in number of months, not credits. Furthermore, there has been no loss of transferred data from the VA since benefits could only be transferred using the TEB website. There is no record of the applicant transferring his Post-9/11 GI Bill to his eligible dependents in 2009; however, that is not indicative of a data loss. (4) The Department of Defense (DOD) Directive Type Memorandum (DTM) 09-003 for the Post-9/11 GI Bill Memorandum, dated 22 June 2009, and the U.S. Army Post-9/11 GI Bill Policy Memorandum, dated 10 July 2009 state: a. DTM 09-003, attachment 2, paragraph 3f, "Designation of Transferee. An individual transferring an entitlement to educational assistance under this section shall, through notification to the Secretary of the Military Department concerned, as specified in paragraph 3i of his attachment: (1) Designate the dependent or dependents to whom such entitlement is being transferred." b. DTM 09-003, attachment 2, paragraph 3i, "Procedures. All requests and transactions for individuals who remain in the Armed Forces will be completed through the TEB web at https://www.dmdc.osd.mil/TEB/." The TEB website's URL is now http:www.dmdc.osd.mil/milConnect. (5) A Soldier should not be granted relief based n 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 VA 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. The applicant did not provide documentation showing he submitted a TEB request before 25 April 2014. 5. The advisory opinion was provided to the applicant on or about 14 October 2016, to afford him the opportunity to respond to its content. He did not respond. 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 as a member of the Selected Reserve on or after 1 August 2009. 2. On 22 June 2009, the Department of Defense (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 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 31 July 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. This eligibility category expired 1 August 2013. 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. 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. 5. A subsequent policy change that went into effective 1 August 2013, provided that Soldiers who submit TEB requests on or after 1 August 2013 will incur a 4-year active duty service obligation, regardless of their total service on 1 August 2009 or if they are eligible for retirement. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-1 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. The ABCMR may, in its discretion, hold a hearing or requests additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant claims he transferred his education benefits to his dependent children in July 2009 using a VA website; however, that transaction did not accurately show upon the review of his documents during his retirement processing. Notwithstanding the applicant's sincerity, there is no documentation available from the TEB website (the only website for transfer of benefits and not within the purview of the VA) nor does he provide any evidence that shows he submitted a TEB request in July 2009. 2. The HRC Post-9/11 GI Bill Team has documentation that shows the applicant submitted a TEB request on 25 April 2014. The HRC GI Bill Team approved the TEB request on 28 April 2014, with a required (by law) service obligation (TEB Obligation End Date) of 30 June 2017. This was less than the 4-year service obligation due to his MRD of 30 June 2017. 3. As an attempt to help the applicant rectify the situation, in May 2014, the HRC GI Bill Team requested he submit a copy of any documentation that would support his claim of a previous TEB submission. To date the applicant has not submitted proof of his contention. 4. The evidence confirms he submitted a TEB request in April 2014. The HRC GI Bill Team noted his 2014 submission and instructed him of his mandatory service obligation that resulted from his transfer of education benefits to his dependent children. His record does not show he has retired or processed out of the Army at this point. Additionally, he communicated with HRC on options regarding retirement and was told that if the TEB service obligation wasn't fulfilled, the TEB request would be revoked. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000830 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000830 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2