ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20160014482 APPLICANT REQUESTS: an exception to policy to transfer educational benefits to her family members under the transfer of educational 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) .DD Form 214 (Certificate of Release or Discharge from Active Duty) .Letters from the Department of Veterans Affairs (VA), dated 5 July and 3 August2016 FACTS: 1.The applicant states: a.She recently retired from active duty on 1 February 2016. She transferred herPost 9/11 GI Bill benefits to her dependents on 25 February 2013. Her daughter received her certificate of eligibility on 5 July 2016. On 3 August 2016, they received the notice stating that her claim for educational benefits have been denied with the reason being: the transferor did not meet their required service obligation to be eligible to transfer benefits. b.She feels this is an injustice due to the fact that she was allowed to retire. Shecan't understand how this was denied when she had over 10 years of service at the time of approval. She was never informed that she owes any more time, nor was her retirement denied. She feels this is an injustice due to the fact that she transferred her benefits to her dependents so that they may have educational benefits just to be informed they aren't entitled to them. If she did not fulfill the obligation, why was she allowed to retire? She asks the Board to consider her application and allow her dependents to use the post 9/11 benefits that she transferred to them so they may continue their education. She has met the criteria for the transfer. 2.The applicant provides: a.Letter, dated 5 July 2016 from the VA to her daughter certifying her entitlement tobenefits for an approved program of education under the Post 9/11 GI Bill. b.Letter, dated 3 August 2016 from the VA to her daughter informing her that herclaim was denied because her service determined the applicant had not met the required service obligations to be eligible to transfer the benefits. 3.Review of the applicant's service records shows: a.She enlisted in the Regular Army on 11 January 1996. She served throughseveral reenlistments. b.She honorably retired on 31 January 2016. Her DD Form 214 shows shecompleted 20 years and 20 days of active service. 4.An advisory opinion was received from the U.S. Army Human Resourced Command(HRC) on 12 June 2018 in the processing of this case. An advisory officialrecommended disapproval of hers request to transfer Post 9/11 GI Bill educationbenefits. The advisory official stated: a.Public Law 110-252 establishes legal limitations on the transferability of unusedPost 9/11 GI Bill benefits. Further, section 3020 of this law, 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 6 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 (DOD) Transfer of Education (TEB) website, http://milconnect.dmdc.mil. All benefits must be transferred before the Service Member separates or retires. b.HRC does not recommend relief based on the following: (1)The Post 9/11 GI Bill is a benefit for the Soldier as a reward for serviceduring 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. (2)The Post 9/11 GI Bill benefit and the TEB incentive do not require a formalone-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post 9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the Department of Veterans Affairs (VA) on VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least one month to the dependent) by requesting TEB via the TEB website, and fulfilling the TEB service obligation. (3)On the TEB website, the Soldier must acknowledge and click on ninestatements in the TEB website before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. (4)The applicant had over six years prior to her retirement to research theeligibility criteria for the TEB incentive. (5)She should have obtained the TEB eligibility criteria through the DODDirective-Type Memorandum 09-003 (dated 22 June 2009), paragraph 3a(3)(c), the Department of the Army (DA) Post 911 GI Bill Policy Memorandum, paragraph 17a(4)(c), DOD, DA, and HRC websites, and various briefings at the installation level. (6)The applicant had sufficient time to submit a TEB request and research theTEB service obligation requirements before she voluntarily retired on 31 January 2016. She failed to research the TEB incentive requirements accordingly. (7)She submitted a TEB request on 12 February 2013. Her servicing CareerCounselor approved the TEB request on 25 February 2013 with a TEB service obligation of 11 February 2017 (viewable in the upper left-hand corner of the TEB website for the applicant to see). (8)She submitted a voluntary request for retirement with a projected retirementeffective date of 31 January 2016. Her retirement order was published on 23 March 2015 and she was provided copies. Before and after that time, she had an opportunity to recognize she would not have been able to fulfill the TEB service obligation. (9)Throughout the TEB process, she had the responsibility to check the TEBwebsite for the status of her TEB request and any TEB service obligation (viewable in the upper left-hand corner of the TEB website). She made herself ineligible for TEB when she requested retirement with a retirement effective date of 31 January 2016, which was before the TEB obligation end date. (10)On 4 August 2016, this office received an inquiry from the VA RegionalProcessing Office (RPO) Muskogee, OK, about her not fulfilling the TEB service obligation. This office rejected her TEB request on 4 August 2016 because she did not fulfill the entire TEB service obligation prior to her retirement. (11)This office sympathizes with the applicant and her dependents; however,the time for her to make herself aware of TEB eligibility criteria was before she submitted the retirement request. 5.The applicant was provided with a copy of this advisory opinion to give him anopportunity to submit a rebuttal. She did not respond.6.The DOD, the VAs, and the Army conducted a public campaign plan that generatedcommunications through military, public, and social media venues. The information waspublished well in advance with emphasis on the criteria. A Soldier must meet variouscriteria to qualify to transfer benefits to an eligible dependent.7.By law and military directive, a Soldier must fulfill the service remaining requirementsfor an approved TEB request. She submitted a TEB request on 12 February 2013. Itwas approved on 25 February 2013 with a TEB service obligation of 11 February 2017.She submitted a voluntary request for retirement with a projected retirement effectivedate of 31 January 2016. She did not fulfill the TEB service obligation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the advisory opinion received from HRC and the requirement for the service member to have a continuing service obligation if using the TEB benefit, the Board found that relief would not be appropriate. 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. X 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.Public Law 110-252 established legal limitations on the transferability of unused Post9/11 GI Bill benefits. The law limits eligibility to transfer unused benefits to thosemembers of the Armed Forces who are serving on active duty or a member of theSelected Reserve on or after 1 August 2009: 2.On 22 June 2009, DOD established the criteria for eligibility and transfer of unusededucational benefits to eligible family members. The policy states and eligible individualis any member of the Armed Forces on or after 1 August 2009 who, at the time of theapproval of the individual's request to transfer entitlement to educational assistanceunder 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 andagrees 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 SelectedReserve) 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 through1 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.On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policywhich identified and established responsibilities, eligibility criteria, benefits, and detailedguidance on the administration of the program. The policy states, in part, that thosewho retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they willtransfer to the Retired List on 1 August 2009. However, the policy does apply to thoseso retired if they are recalled to active duty and serve on or after 1 August 2009 andbefore 2 August 2012. 4.Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post 9/11GI Bill TEB Four-Year Service Obligation for Approved TEB Requests Submitted after 1August 2013, applied to Soldiers who would submit a Post 9/11 GI Bill REB on or after 1August 2013, resulting in an approval to transfer. a.The purpose of this message was to emphasize that all Post 9/11 GI Bill TEBrequests submitted and approved after 1 August 2013 would incur a 4-year service obligation from the TEB request date, regardless of years in service (except when precluded by either policy or statute from committing an additional 4 years (for example, temporary early retirement authority). b.The 4-year obligation incurred by TEB requests approved on or after 1 August2013 begins on the TEB request date and must be served in the same Army component. c.A zero, one, two or three-year service obligation will no longer be available forthose who request TEB on or after 1 August 2013. All Soldiers who request TEB on or after 1 August 2013 will incur a 4-year service obligation regardless of time in service.