ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20160014943 APPLICANT REQUESTS: reconsideration to Transfer Education Benefits (TEB) under the Post 9/11 G.I. Bill to his dependents. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) x 2 * National Guard Bureau (NGB) Memorandum Subject: Transfer of Post 9/11 GI Bill Benefits * Transfer of Education Benefits Wavier Process for Retiree printout * Post 9/11 GB Bill Briefing Flier * VA Form 22-1990 (Department of Veterans Affairs (VA), Application for VA Education Benefits) * American Military University Diploma for Masters of Art, Homeland Security * SF 50 (Notification of Personnel Action) * SF 52 (Request for Personnel Action) * MilConnect Transfer of Education Benefits printout FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150015959 on 7 October 2015. 2. Applicant states this application is a resubmitted request. The first application was closed because he had not exhausted all administrative remedies prior to applying to Army Board for Correction of Military Records (ABCMR). He reports when he contacted NGB he was informed they did not have any jurisdiction in this matter, and he would need to submit his request to the ABCMR. The applicant's current application shows: * he is asking his education benefits be transferred to his son * he was denied by NGB and has since resubmitted his request * he was unaware he had to transfer his VA benefits to his son prior to departing active duty for retirement * he understands there are thousands of other people who did not get the information about transferring educational benefits before leaving active duty, and were uninformed because the benefit was new * the applicant reports he was on terminal leave when the benefit became available, and was not informed regarding the process to transfer the educational benefit * on July 2009, he attended a Post 9/11 GI Bill briefing, he was told to complete VA Form 22-1990, he completed with the intention to transfer benefits to his son as depicted * on September 2015, the applicant inquired to the VA about TEB, and he was told his dependents were not eligible 3. A review of the applicant's records show: * 12 February 1981 - he commissioned in the New Jersey Army National Guard (NJARNG) * 5 February 1990 to 13 November 2005 - he was mobilized * 14 November 2005 to 30 September 2009 - he was Army National Guard Active Duty * 28 May 2009 – Orders 148-079 show the applicant was honorably retired effective 1 October 2009 4. 5 August 2016, a letter from Army Review Board Agency (ARBA) shows the applicant requested a TEB on 4 September 2015 with the ABCMR. He was informed he needed to apply with the NGB before he could apply with the ABCMR. 5. 12 August 2016, a memorandum from the NGB Subject: Transfer of Post 9/11 GI Bill Benefits show the applicant became eligible for the Post 9/11 GI Bill Benefits, but he did not complete the request for transfer benefits on the Department of Defense's Transfer of Education Benefits online database before he separated on 30 September 2009. His request was denied. 6. The applicant provided a Transfer of Education Benefits Wavier Process for Retiree printout showing: * service members who retired between 1 August 2009 and 1 November 2009 may not have known that the Post 9/11 GI Bill could be transferred to their dependents * service member can file for a correction of military records to fix errors or omissions * about 16,000 people retired from the military in the first few months following 1 August 2009, the launch date of the Post 9/11 GI Bill, over 50,000 service members approved for TEB in those months in which the board decided to allow some transfers post - retirement as a result of retiree application for correction 7. The applicant provided a flier showing a Post 9/11 GI Bill briefing, American Military University Diploma for Masters of Art, Homeland Security, SF 50 and SF 52 and a MilConnect Transfer of Education Benefits printout showing his dependents were not eligible for TEB. 8. On 13 August 2009 the applicant completed VA Form 22-1990 showing he requested to transfer the benefits to his children. 9. On 19 December 2018 the Army Review Boards Agency received an Advisory Opinion from the National Guard Bureau showing: * the applicant requested transfer of benefits to his dependents * NGB recommends approval of applicant's request * the applicant was not informed about the option to transfer his Post 9/11 GI Bill to his children * DD Form 214 shows the applicant served in Iraq from 16 August 2004 to 13 November 2005 * he received an honorable discharge with 28 years of service * Department of Defense Directive - Type Memorandum (DTM) 09-003, dated 22 June 2009 show individuals with an approved retirement date after 1 August 2009 and before 1 July 2010 would not incur a service obligation for TEB * he was a solider during the initial phase of the program to disseminate the transfer of benefit information; he was not fully aware of the requirement to transfer benefits prior to leaving the military service * based on the applicant’s status at the time of the transfer of education benefits program inception and the slow dissemination of information, it is reasonable that the applicant did not receive the necessary information prior to transferring to the Retired Reserves on 30 September 2009 * had he completed the transfer of benefits, he would not have incurred the service obligation as his date of retirement fell between 1 August 2009 and 1 July 2010 * it is the benefit of the NGB that the applicant be granted transfer of his benefits to his children * NGB concurs with this recommendation * NJARNG did not provide any input with this recommendation 10. The applicant was provided a copy of this advisory opinion to provide him an opportunity to comment and/or submit a rebuttal. On 11 February 2019, the applicant provided a response showing: * he agreed with NGB advisory opinion recommendation * the applicant reports because it took 3 years, 5 months to review his case, the applicant's son will be turning 26 on August 2019, he therefore may not be able to use the benefits if it is granted because TEB expires on the family member’s 26th birthday * with this new dilemma, he requests the ABCMR recommend his son be able to receive the Forever, Post-9-11GI Bill as it does not expire * the applicant's son has worked a low wage part time job and took college courses at the local community college waiting for the TEB decision, so he would be in position to transfer to Rutgers University Camden Campus * his son has put his life on hold for several years waiting on the ABCMR’s decision; he would have been able to finish his degree before his 26th birthday had he been able to begin college two years ago * besides waiting for years on a decision, he lost his older brother in 2016 which the applicant brings to the Board’s attention because this was another life event that caused his son more heartache and disappointment to deal with * the applicant also provided additional documents, one of a Soldier who was in the Army two years after TEB started and took his case to civil court and the judge ruled in his favor 11. Public Law 110-252 limits the 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. a. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. b. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS). Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase which is the first 90 days of the program. g. A Soldier must have initially requested to transfer benefits on the DOD TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. 12. Department of Defense Directive - Type Memorandum (DTM) 09-003, dated 22 June 2009 show individuals with an approved retirement date after 1 August 2009 and before 1 July 2010 would not incur a service obligation for TEB BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the advisory opinion received from the NGB stating that the applicant had not been properly trained on the program, the Board found an injustice which warranted correction. For that reason, the Board recommended granting full relief to the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 limits the 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. a. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. b. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS). Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase which is the first 90 days of the program. g. A Soldier must have initially requested to transfer benefits on the DOD TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. 2. Department of Defense Directive - Type Memorandum (DTM) 09-003, dated 22 June 2009 show individuals with an approved retirement date after 1 August 2009 and before 1 July 2010 would not incur a service obligation for TEB ABCMR Record of Proceedings (cont) AR20160014943 0 6 1