ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 March 2019 DOCKET NUMBER: AR20160013564 APPLICANT REQUESTS: to transfer his Post-9/11 GI Bill. APPLICANT’S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the time frame provided in the statute of limitations, however, the ABCMR has elected to conduct a substantive review of this case and has determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * during his Army Career and Alumni Program classes, he was asked if he wanted to forward his education benefits to his children * he stated he did and thought it was done * when he went online to apply for his GI Bill benefits, he was told he hadn't transferred the benefits to his children * he knows he transferred his benefits * he had been saving these benefits for his children's education * without them, the children won't be able to attend college * he planned ahead and though it was taken care of 2. The applicant was honorably retired from the Army on 31 July 2009. He served 20 years and 24 days of active duty service. 3 In the processing of this case an advisory opinion was obtained from the Incentives Programs Manager, US Army Human Resources Command on 14 June 2018. The advisory official recommended disapproval of the applicant's request. The advisory official opined: * Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits * Public Law 110-252 section 3020 limits eligibility for those members who are serving on Active Duty on or after 1 August 2009 * the applicant served honorably after 10 September 2001 for at least 90 days so he is eligible for that reason to transfer he benefits * he is ineligible to transfer his benefits however because he retired due to Sanctuary status on 31 July 2009 which is before the implementation of the Post-9/11 GI Bill * the advisory official did not recommend administrative relief because the applicant did not make himself eligible to transfer the benefits by serving on active duty or in the selected reserve after 1 August 2009 4. The applicant was provided a copy of this advisory opinion on 23 July 2018, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 5. See REFERENCES below for applicable regulations and policy to this case. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and the advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed Public law does show the applicant is not eligible to transfer education benefits. BOARD VOTE: Member 1 Member 2 Member 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. ADMINISTRATIVE NOTE(S): N/A 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. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 3. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. 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 service in the 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 service or 20 qualifying years of Reserve service. 4. DOD policy further states the Secretaries of the Military Departments will provide active duty participants 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. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013564 2