ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  28 January 2019

	DOCKET NUMBER:  AR20160013145


APPLICANT REQUESTS:  correction of his records to show he is eligible to transfer his education benefits to his wife under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states, in effect:

	a.  He was placed on TDRL (temporary disability retired list) on 1 November 2009 at which time he filled out paperwork to allow his wife to use his post 9/11 GI Bill prior to that date.  Currently, on the .mil site, it shows that she is ineligible for this transfer.  He needs this corrected so that she is eligible as soon as possible.  They have exhausted every other option in order to correct this.

	b.  The active duty Army liaison, stated there was a possibility that because of the date of when the post 9/11 GI Bill came into effect and the date of his retirement, there would be a lapse in processing his paperwork from the 25th Infantry Division, Schofield Barracks, HI.

	c.  The Board should consider this application so that his wife is able to further her education.  The educational program starts 22 August 2016.  They are hoping to improve and better their lives as well as the lives of their dependents.

3.  The applicant’s record shows:

	a.  Having prior enlisted service, he enlisted in the Regular Army on 15 November 2007.  

	b.  On 19 August 2009, a physical evaluation board (PEB) found the applicant unfit and recommended a disability rating 30 percent (%).

	c.  On 24 September 2009, he received preseparation counseling.  

	d.  He was honorably retired on 31 October 2009 and placed on the TDRL on 1 November 2009.  He completed 1 year, 11 months, and 16 days of net active service this period; 6 months and 27 days of total prior active service; and 3 months and 7 days of prior inactive service (2 years, 9 months, and 20 days of active and inactive service).  

4.  On 13 August 2018, the U.S. Army Human Resources Command official rendered an advisory opinion in the processing of this case.  The official recommended disapproval of the applicant’s request to transfer Post 9/11 GI Bill education benefits, 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, section 3020 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 six years in Active Duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the Department of Defense's TEB website, http://milconnect.dmdc.mil.   

	b.  All benefits must be transferred before the service member separates or retires.  The applicant served honorably after 10 September 2001 for at least 90 days, so he is eligible for the Post 9/11 GI Bill; however, he is ineligible to transfer education benefits because he medically retired before having at least six years of service.  Again, he is eligible to use the Post 9/11 GI Bill for his personal use until 31 October 2024, which is 15 years after his last release from active duty. 

	c.  The 15-year delimiting timeframe remains in place and is not waived by Public Law 115-48, section 112, the Harry W. Colmery Veterans Educational Assistance Act of 2017, because he was medically retired before 1 January 2013.

5.  On 24 August 2018, the Case Management Division, Army Review Boards Agency, provided the applicant a copy of the advisory opinion for review and comment.  The applicant did not provide a response.

6.  Public Law 110-252, section 3020, 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, who:

* has at least 6 years of service in the Armed Forces on the date of election, with agreement to serve 4 additional years 
* if precluded by either standard policy or statute from committing to 4 additional years, has at least 10 years of service in the Armed Forces
* is or becomes retirement eligible (has completed 20 years of active duty or 20 qualifying years of Reserve service, have at least six years in Active Duty or Selected Reserve status) during the period from 1 August 2009 through 1 August 2013

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, as well as the statement from the applicant, the Board found that relief is not appropriate in this case.  The Board found, as outlined in the HRC advisory, that the applicant is prohibited from transferring his education benefit.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, Public Law 110-252, section 3020, 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.   

3.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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:

	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.

4.  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 and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

5.  The Army, DOD, and the Department of Veterans Affairs conducted a public campaign that generated communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.

6.  During the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits.  This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.  

ABCMR Record of Proceedings (cont)	 AR20160013145


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