BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160005052 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: AR20160005052 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: AR20160005052 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, correction of his records to show he made a timely application, prior to his effective date of retirement, to transfer his unused education benefits to his eligible dependents in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states that during transition he was told he had to transfer the education benefit before exiting the military. He contends the education counselor filled out the required forms electronically and verified that his dependent would be able to use his unused education benefits. He thought the process had been completed. 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 was retired on 31 December 2010 after completing over 25 years of active duty service. His record does not contain evidence that indicates he attempted to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his date of retirement. His record is also void of evidence that indicates he received erroneous or misleading information on the TEB provisions of the Post 9/11 GI Bill. 3. During the processing of this case, an advisory opinion was obtained from the Army Education Incentives Branch at the U.S. Army Human Resources Command (HRC). This office recommended disapproval of the applicant's request and stated the following: a. The Post 9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The option to transfer education benefits to a dependent is considered an incentive, not a benefit. The transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for service nor a transition benefit. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. b. The TEB incentive does not require a formal one-on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation. c. In April 2011, the ABCMR and the Department of the Army (DA) G-1/Directorate of Military Personnel Management/Enlisted Professional Development Branch (Post 9/11 GI Bill policy proponent) agreed that any Soldier who retired after 1 Aug 2009 through the next 90 days or was on transition leave during the first 90 days and subsequently retired may not have received sufficient information during this timeframe to submit a TEB request. This timeframe is referred to as the "TEB 90-day implementation phase." Any Soldier retiring within this timeframe would have to submit a request for relief through the ABCMR. Any Soldier retiring after this timeframe is considered as having sufficient time to have had access to TEB incentive information. The applicant retired on 31 December 2010, which was not within the TEB 90-day implementation phase; therefore, he is considered to have had sufficient time to research the TEB incentive. d. The applicant could have obtained the TEB eligibility criteria through the Department of Defense (DoD) Directive-Type Memorandum 09-003 (dated 22 June 2009), DA Post 9/11 GI Bill Policy Memorandum, HRC websites, and various briefings at the installation level. He could have used these resources available to him to research the TEB incentive requirements. e. All of the TEB information available to him included the requirement to transfer while either on active duty or in Selected Reserve status and the possible requirement to serve an additional service obligation. Specifically, the DA Post 9/11 GI Bill Policy Memorandum, paragraph 17g(1) stated, "Time for Transfer. A Soldier 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." f. The applicant stated on his application to the ABCMR that he filled out forms electronically with an education counselor; however, benefits can only be transferred using the TEB website. There have never been any forms to complete to transfer the Post 9/11 GI Bill. He may have submitted Department of Veterans Affairs (VA) Form 22-1990 (Application for VA Education Benefits) to the VA for his own Post 9/11 GI Bill usage; however, it was not for the TEB to his dependents. g. For a TEB request to be submitted successfully, the applicant would have been required to submit a TEB request through the TEB website first. Later, when his dependents completed high school or turned 18, his dependents would be required to apply through the VA website for usage. h. Their office sympathizes with the applicant and his dependents; however, the time for him to make himself aware of TEB eligibility criteria and process was during his time in the U.S. Army. TEB is an incentive, not a benefit. Regretfully, he did not research nor submit a TEB request during this timeframe as required by law and policy. 4. The advisory opinion was forwarded to the applicant to allow him the opportunity to provide additional evidence or comments. He did not respond. REFERENCES: 1. The Post-9/11 GI Bill went into effect on 1 August 2009. 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 VA is responsible for final determination of eligibility for educational benefits under this program. 2. The DoD established the criteria for eligibility and transfer of unused education benefits to eligible family members on 22 June 2009. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her 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. 3. The Army released the Post-9/11 GI Bill Implementation Policy on 10 July 2009, which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. 4. The 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 TEB. 5. Title 38, U.S. Code, section 3319, prohibits service members who are no longer serving on active duty from transferring educational benefits. The legislation specifically 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 law governing the transferability of unused Post-9/11 GI Bill education benefits places legal limitations on transferability. Members must register and complete transfer prior to leaving the service. 2. DoD and the Army 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. 3. The Army has generally granted relief to members who left the service within the first 90 days after implementation of the program on 1 August 2009. In this case, the applicant's last day in the service was 31 December 2010, 1 year and 5 months after the implementation of the program. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005052 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005052 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2