ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:       29 March 2019

	DOCKET NUMBER:  AR20160014715


APPLICANT REQUESTS: an exception to policy to transfer educational benefits to his 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)
* Retirement Orders

FACTS:

1.  The applicant states it came to his attention that he is not able to transfer his educational benefits to his children.  At no time during his active duty status was he informed and or made aware that he could only do this process while on active duty status.  He has completed his educational goals as of last year and his intention was to give his children this head start for their educational needs.  His last duty stationed was in Muskegon, Ml.  He had to travel 7 hours to Fort Knox, KY for his medical retirement process.  To the best of his knowledge, he does not recall any conversation concerning educational benefits, more so transferring benefits while still on active duty status.  Had he known this, he would have exercised this option.  The trips to Fort Knox were to fulfill the required process for his medical retirement process.  It was his full understanding that once a Soldier was awarded the Post 9/11 GI Bill, he could transfer the educational benefits at any time.  He requests this Board allow his Post 9/11 GI Bill to successfully transfer educational benefits to his children.

2.  Review of the applicant's service record shows: 

	a.  He entered active duty in the Active Guard Reserve (AGR) program on 5 July 1998.  

	b.  He retired due to disability on 16 April 2015.  He completed over 20 years and 5 months of active service.   

3.  An advisory opinion was received from the U.S. Army Human Resources Command (HRC) on 24 July 2018 in the processing of this case.  An advisory official recommended disapproval of this 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, § 3020 Public Law 110-252, 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 90 days of qualifying Post 9/11 GI Bill service, 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 Transfer of Education Benefits (TEB) website, http://milconnect.dmdc.mil.  All benefits must be transferred before the Service Member separates or retires.

	b.  The HRC Incentives Program Manager does not recommend administrative relief based on the following:

		(1)  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.

		(2)  The TEB incentive does not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible.  A Soldier acquires TEB eligibility as stated above and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation.

		(3)  In April 2011, the ABCMR and the Department of the Army 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 August 2009 through the next 90 days or was on terminal 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 through the ABCMR.  Any Soldier retiring after this timeframe is considered as having sufficient time to have had access to TEB incentive information.  

		(4)  The applicant was on AGR title 10 Active Duty Orders from 5 July 1998 - 16 April 2015 and retired 16 April 2015 which was not within the TEB 90-day implementation phase (1 August- 31 October 2009) nor on terminal leave (up to 60 days) during this timeframe and retiring afterward (1 November 2009 - 1 January 2010); therefore, he is considered as having sufficient time to research the TEB incentive.
		(5)  The applicant could have obtained the TEB eligibility criteria through the Department of Defense (DOD) Directive-Type Memorandum 09-003 (dated 22 June 2009), the Department of the Army (DA) Post 9/11 GI Bill Policy Memorandum, paragraph 17a(4), DOD, DA, and HRC websites, and various briefings at the installation level. He could have used these resources available to him to research the TEB incentive requirements.

		(6)  All of the TEB information available to him included the requirement to transfer while either in Active Duty or 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."

		(7)  This 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 Reserves.  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 applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond. 

5.  The DOD, the Department of Veterans Affairs, and the Army conducted a public campaign plan 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.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but there is no documentary evidence to confirm he did so.  The program was implemented in July 2009.  The applicant retired in April 2015.  By law and military directives, a qualified Soldier approved to transfer entitlement to educational assistance may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.  The applicant did not transfer any Post 9/11 GI Bill benefits while serving as on active duty or in the Selected Reserve. 


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined relief was warranted.  One possible outcome discussed was that the applicant had more than enough time to transfer benefits but failed to do so.  However, after reviewing the totality of the circumstances, the Board found that the applicant’s statement about not properly being educated about the program and its transferability was sufficient to warrant the requested relief.  
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:x	:x	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:x	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his family member prior to his retirement, provided all other program eligibility criteria are met.
	 
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 Post 9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve on or after 1 August 2009:

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

	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 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 Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  The policy states, in part, that those who 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 will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

4.  Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post 9/11 GI Bill TEB Four-Year Service Obligation for Approved TEB Requests Submitted after 1 August 2013, applied to Soldiers who would submit a Post 9/11 GI Bill REB on or after 1 August 2013, resulting in an approval to transfer. 

	a.  The purpose of this message was to emphasize that all Post 9/11 GI Bill TEB requests 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 approve don or after 1 August 2013 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 for those 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. 


ABCMR Record of Proceedings (cont)	 AR20160014715


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