IN THE CASE OF: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20160012035 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 1 April 2019 DOCKET NUMBER: AR20160012035 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. 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: 1 April 2019 DOCKET NUMBER: AR20160012035 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests approval to transfer his Post-9/11 GI Bill educational benefits to his dependent children. 2. The applicant states he was not advised he needed a letter of authorization from the Pennsylvania Army National Guard (PAARNG) to transfer his Post-9/11 GI Bill educational benefits to his dependent children when he retired. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) with supporting document(s): * Two DA Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 6 November 1985 and 23 July 2003 * National Guard Bureau (NGB) Forms 23B (Army National Guard Retirement Points History Statement), dated 22 October 2003, 11 April 2008, and 14 April 2011 * Two DA Forms 2-1 (Personnel Qualification Record – Part II) * NGB Forms 23A (Army National Guard Current Annual Statement), dated 24 February 2010 and 18 August 2010 * Memorandum, Adjutant General's Office, Commonwealth of Pennsylvania, dated 18 August 2010, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * NGB Form 55b (Honorable Discharge Certificate), dated 12 April 2011 2. Evidence from the applicant's service record and Department of the Army and Department of Defense records and systems: * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 25 June 1986 and 19 October 2009 * DA Form 4856 (Developmental Counseling Form), dated 25 March 2011 * NGB Form 22 (Report of Separation and Record of Service) for the period ending 12 April 2011 REFERENCES: 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. 2. The Post-9/11 Veterans Educational Assistance Act of 2008 improves educational benefits for certain individuals serving on active duty in the Armed Forces on or after 11 September 2001. a. 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, in effect at the time, stated 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: (1) 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 (2) 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 (3) 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. b. The program guidance stipulates that if a service member becomes retirement eligible during the period 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: (1) service members eligible for retirement on 1 August 2009 – no additional service is required; (2) service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required; (3) service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required; (4) service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required; (5) service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and (6) active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability. DISCUSSION: 1. While 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 U.S. Army Reserve on 6 November 1985. 3. He was ordered to active duty in support of Operation Iraqi Freedom from 19 September 2008 through 19 October 2009. 4. He was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 18 August 2010. 5. On 25 March 2011, he was counseled in writing that any Post-9/11 GI Bill educational benefits that he wished to transfer to his spouse or dependents must be completed before he retired. He indicated he intended to transfer his Post-9/11 GI Bill educational benefits to his spouse or dependent and he was given a copy of the instructions to transfer his education benefits to his dependents. 5. He was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve) on 12 April 2011. 6. An advisory opinion was rendered by NGB, dated 22 May 2018, wherein the Special Actions Branch Chief stated: a. The Army National Guard, DOD, and Department of Veterans Affairs initiated a massive 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 educational benefits. b. Although significant measures were taken to disseminate the information to all Soldier during the initial phase of the program, many Soldiers were not fully aware of the requirement to transfer unused educational benefits prior to leaving military service. c. Based on the applicant's status at the time of the transfer of the Post-9/11 GI Bill transfer of educational benefits program inception and the slow dissemination of information, it is reasonable that he did not receive the necessary information prior to his transfer to the Retired Reserve. d. Had he completed the transfer of educational benefits, he would have incurred a service obligation as his date of retirement fell between 1 August 2010 and 1 August 2011. e. The Special Actions Branch believes the applicant should be granted approval to transfer his educational benefits to his dependent children. f. NGB concurred with this recommendation. 8. The evidence of record shows the applicant was counseled in writing regarding transfer of Post-9/11 GI Bill educational benefits prior to his transfer to the Retired Reserve. There is no documentary evidence showing he elected to transfer his unused Post-9/11 GI Bill educational benefits to any eligible dependents or agreed to an additional service obligation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012035 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2