ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 April 2019

	DOCKET NUMBER:  AR20160015275


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)
* Statement from his Personnel Branch Supervisor
* Department of Defense Instruction 1341.13 (Post 9/11 GI Bill), dated 31 may 2013

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 when the Army decided to allow Soldiers to have the ability to delegate their Post 9-11 GI Bill to their dependents on or about October 2009, he was identified by the State of Ohio Army National Guard (OHARNG) Personnel Section to be eligible to delegate this benefit.  They then sent to all of their major commands an order listing the Soldiers eligible to delegate these benefits.  He was included on that list.  His battalion personnel section never contacted him with the option to fill out the paperwork for this. He did not find out about the error until after having retired and at that time trying to delegate the funds to his family.  He discovered that his own battalion personnel section that was supposed to help him had failed him in this very important matter.

3.  The applicant provides a copy of DODI 1341.3, dated 31 May 2013.  He also provides a statement, dated 9 June 2016 from OHARNG Personnel Branch Supervisor who states: 

* [Applicant] was eligible to transfer his Post 9/11 GI Bill while he was in service
* the OHARNG published guidance on or about October 2009 directing all Soldiers who meet the requirements to transfer this benefit be counseled regarding the upcoming change that would require a 4 year reaming service obligation
* these counseling were sent to the education and incentives office and remain on file; the applicant was not counseled on this change
* he retired  on 1 June 2011 without being fully advised on the requirements to transfer education benefits to his family.

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

	a.  16 April 1985 - he enlisted in the OHARNG.  

	b.  23 October 2004 - he entered active duty and subsequently served in Kuwait/Iraq from January to December 2005.

	c.  2 May 2005 - he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), and 4 February 2006, he was honorably released from active duty. 

	d. 28 April 2007 - he entered active duty (Title 32, U.S. Code, section 502(f)).

	e.  30 September 2009 - he was honorably released from active duty.

	f.  19 January 2011 - he applied for separation from the OHARNG. 

	g. 14 February 2011 - OHARNG published Orders 045-926 discharging him from the ARNG and transferring him to the Retired Reserve effective 1 June 2011.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed over 26 years of ARNG service.

	h.  There is no indication in milConnect he requested to transfer Post 9/11 GI Bill benefits to his family members while on active duty or in the Selected Reserve. 

5.  An advisory opinion was received from the National Guard Bureau on 30 August 2018 in the processing of this case.  An advisory official recommended approval of this request to transfer Post 9/11 GI Bill education benefits and stated: 

	a.  The applicant was not informed about the option to Transfer his Post 9/11 GI Bill (TEB) to his children prior to his discharge according to Memorandum for Record, dated 9 June 2016.  

	b.  Transfer of Post 9/11 GI Bill Benefits to Dependents was established to promote retention.  DTM (DOD Directive Type Memorandum) 09-003, dated 22 June 2009, identifies specific service obligations required for individuals that choose to use TEB. Subparagraph 3(a) specifies that "For those individuals eligible for retirement on 1 August 2009, no additional service is required."  The applicant received his statement of eligibility for retired pay at age 60 on 2 May 2005.  A DD Form 214 in the Soldier's record shows he served in support of Operation Iraqi Freedom 15 January 2005 through 28 December 2005. Soldier received an honorable discharge on 01 June 2011 with 26 years of service.

	c.  The ARNG, DOD, and Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. Therefore, it is the belief of this office that the applicant should be able to transfer his benefits to his children.

	d.  This  opinion was coordinated with the ARNG Incentives office.  The OHARNG does not concur with this recommendation.

6.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to provide a rebuttal.   He did not respond. 

7.  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. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was warranted.  Based upon the advisory received from the National Guard Bureau and the letter from SFC Wesley Martz who stated the applicant was not counseled on the subject, the Board recommended full relief.

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 and the Army National Guard records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members 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.  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 limits the eligibility to transfer unused education 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.

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 may transfer education benefits to eligible dependents.

	a.  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.

	b.  Soldiers receive counseling on all GI Bills, including the Post 9/11 GI Bill benefit and the TEB incentive at various venues throughout the Soldier's career (in/out-processing at Education Centers, Commander's Calls), upon demobilization or release from active duty, and during the last year before separation or retirement (Soldier for Life (SFL)-Transition Assistance Processing (TAP)).  Soldiers have had access to and received counseling on GI Bill benefits since 2002 on-line and in-person.  

	c.  The TEB incentive does not require a formal one-on-one counseling, group counseling.  A Soldier acquires TEB eligibility and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation (if applicable).

	d.  The applicant should have obtained the TEB eligibility criteria through the DOD Directive-Type Memorandum 09-003 (dated 22 June 2009), the Department of the Army (DA) Post 911 GI Bill Policy Memorandum, DOD, Army, U.S. Army Human Resources Command, NGB/ARNG websites, and various briefings at the installation level.  
	e.  All of the TEB information available to Soldiers 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, stated, "For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component."  It also 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."


ABCMR Record of Proceedings (cont)	 AR20160015275


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