BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160003160 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: 12 December 2017 DOCKET NUMBER: AR20160003160 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: 12 December 2017 DOCKET NUMBER: AR20160003160 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 approval of an exception to policy (ETP) to allow him to transfer his unused educational benefits to his eligible family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states that while he was deployed to Iraq, the Post 9/11 GI Bill was never explained to him in full detail. He was on a deployment when he transferred his benefits and no one explained the service obligation. Had he known about the service obligation, he would not have retired and would have fulfilled his service obligation in order for his children to receive this benefit. 3. The applicant provides no additional evidence in support of his request. 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 Delaware Army National Guard (DEARNG) on 25 July 1990. He continued his service in the DEARNG through a series of reenlistments and extensions, and on 7 May 2006, he extended his term of service for a period of 6 years, establishing his new expiration of term of service (ETS) date as 24 July 2012. 3. The applicant's record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he served in Iraq from 13 July 2009 to 13 April 2010. 4. The applicant's Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) is dated 3 August 2010. 5. The applicant's record in the ARNG Incentive Management System (GIMS) shows the following entries: a. Date Entered: 15 June 2011, "Ch [chapter] 33 TEB request pending: Awaiting SOU [statement of understanding]. Emailed instructions to service member's AKO [Army Knowledge Online] account. TEB date is 20110611. OED [obligation end date] 20120611." b. Date Entered: 22 August 2011, "Ch 33 TEB request terminated. No action by SM [service member] to complete SOU for 70 days or more. TEB date is 20110611. OED 20120611, if SM follows through with completing SOU. Email sent to SM's AKO account." 6. The applicant's National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) shows he was discharged from the DEARNG and transferred to the Retired Reserve on 4 March 2012. 7. During the processing of this case, an advisory opinion was obtained from the NGB, Personnel Policy Division. It states: a. In May 2006, the applicant reenlisted, extending his ETS date to 24 July 2012. Three years following this reenlistment, he deployed to Iraq, returning in May 2010. Two months later on 24 July 2010, he completed 20 years of service and shortly after received his retirement eligibility letter. On 11 June 2011, he requested the TEB. His OED was listed as 11 June 2012. Several days later, education services followed up this transaction with an email to the applicant's AKO that provided additional information, including the SOU required by National Guard policy. On 22 August 2011, education services stated that the applicant had not completed his SOU, that they were required to terminate his application for TEB, and that they notified the Soldier via AKO email of this. They also noted if they received the SOU, the OED would remain valid. Seven months later, on 4 March 2012, the applicant retired. One month later, education services annotated this discharge, and then on 4 May 2012, mailed him a notification of the discrepancy in his record, along with the process to request an ETP. On 30 July 2012, the applicant contacted education services to inquire about the status of his TEB and was informed his application had been terminated. The counselor also noted he was no longer eligible for TEB since he was a loss. b. In accordance with Directive-Type Memorandum 09-003: Post-9/11 GI Bill, Soldiers eligible for retirement between 1 August 2009 and 31 July 2010 who executed TEB would only incur a 1 year additional service requirement. Hence, education services logged the applicant's OED to be 11 June 2012 following initiation of his TEB application. Therefore, he was on track to have completed his OED one month prior to his ETS of 24 July 2012. As part of this TEB application and in accordance with ARNG Post-9/11 GI Bill Guidance (dated 28 January 2010), he was required to complete and return a SOU, outlining his personal additional service obligation. Records indicate that this SOU and/or information regarding it was sent to him on at least three occasions via both AKO email and postal service. c. The applicant states he was not properly counseled on the additional service obligation requirement upon transferring his GI Bill and he would have completed the required service obligation had he known about it. However, there is insufficient evidence to prove he suffered an injustice. While his lack of knowledge of the service obligation may be correct, it was only due to his failure to acknowledge the documents designed to educate him (the SOU) sent on multiple occasions. It is reasonable to state if he referenced and returned the SOU, then he would have known of all consequences regarding his TEB. This series of events proves the termination of his TEB application was not due to lack of serving an additional service obligation, but primarily a failure to review and submit the SOU in a timely manner. While failure to comply with ARNG policy is not sole grounds to deny the Soldier's request, failure to comply with Federal requirements in the execution of TEB (i.e., the service obligation) is the foundation for this recommendation. It is for this reason of the applicant's failure to take a consistent and active role in ensuring he met all requirements in transferring his education benefits that their office recommends disapproval of his request. d. The NGB Education Services Branch concurs with this recommendation. e. The DEARNG was coordinated with for this recommendation. 8. The advisory opinion was provided to the applicant to allow him the opportunity to provided additional evidence or comments. He did not respond. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-2c, states the ABCMR will decide cases on the evidence of record. It is not an investigative agency. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law  110-252, House of Representatives, 2642. In July of 2008, Congress voted into law the Post-9/11 GI Bill, which went into effect on 1 August 2009. a. Service members must have accrued specific qualifying active duty service on or after 11 September 2001, of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service. b. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service. 3. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The Department of Veterans Affairs (VA) is responsible for final determination of eligibility for educational benefits under this program. 4. The program guidance stipulates that if a service member becomes retirement eligible during the period on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents. A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732: a. service members eligible for retirement on 1 August 2009 – no additional service is required; b. service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required; c. service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required; d. service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required; e. service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required. 5. The Army, Department of Defense (DoD), and the VA initiated a public campaign plan that generated communications through military, public, and social media venues. The information on the program and subsequent transfer of entitlements were published well in advance of the implementation date of 1 August 2009, with emphasis on the criteria. DISCUSSION: 1. The applicant was eligible to transfer his education benefits under the TEB provision of the Post 9/11 GI Bill and his application was approved for the TEB on 11 June 2011. However, based on the program stipulations, he incurred a service obligation of 1 year from the date of the approval, which established his service obligation end date as 11 June 2012. 2. As part of the TEB approval process, he would have been made aware of the additional service obligation he incurred. In addition, the available evidence suggests the NGB Education Services Office also attempted to make him aware of his service obligation end date of 11 June 2012. However, he retired on 4 March 2012, which was more than 3 months prior to the completion of his obligated service requirement. 3. Further, the Army, DoD, and the VA conducted a public campaign that generated major communications on the transfer of education benefits under the Post-9/11 GI Bill through military, public, and social media venues. The applicant did not provide evidence that shows he was deprived of information broadly disseminated through the public campaign. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003160 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003160 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2