ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:      29 March 2019	

	DOCKET NUMBER:  AR20160015807


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)

FACTS:

1.  The applicant states when he did his 4-year obligation in 2010 to transfer his GI Bill benefits to his dependents, he was not informed to give each dependent a month of credit prior to his separation.  Since he was unaware and was not informed of this requirement, he is requesting his dependents get their election to use the benefits he and his family have accrued during his military service. 

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

	a.  Having had prior active service, he enlisted in the Regular Army on 14 October 2008.  He served through several reenlistments. 

	b.  He retired on 30 June 2016.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years and 5 days of active service.  

3.  An advisory opinion was received from the U.S. Army Human Resourced Command (HRC) on 9 August 2018 in the processing of this case.  An advisory official recommended disapproval of his request to transfer Post 9/11 GI Bill education benefits.  The advisory official stated: 

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 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 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)  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 through SFL-TAP (e.g., ACAP XXI or TAP XXI) since 2002 on-line and in-person.  Soldiers are required to access SFL-TAP on-line initially and follow-up in person at the SFL-TAP Centers.

		(3)  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.

		(4)  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, paragraph 17a(4), DoD, DA, and HRC websites, various briefings at the installation level, and briefings through SFL-TAP.  He should have used the DOD and DA resources available to him. 

		(5)  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 17 (second sentence) 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."  (Note: only certain sections of Active Duty qualify under Title 10).  Also, 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."

		(6)  The applicant stated in his application that he did a four year obligation in 2010 "to transfer my GI Bill Benefits to my dependents."  He further stated, "I was never informed to give each dependent a month of credits prior to release from active duty." The applicant reenlisted for three years on 13 March 2010, but did not transfer education benefits at that time.  Later, on 10 March 2012, he reenlisted "indefinitely" with his Retention Control Point (RCP) listed as 30 June 2016 on DD Form 4 (Enlistment/Reenlistment Document).  Regretfully, the TEB website shows he did not submit a TEB request during the timeframe required by law and policy, nor during the seven years after TEB became available on 1 August 2009.  Again, TEB is a retention incentive, not a benefit.  

		(7)  In April 2011, the ABCMR and 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 Aug 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 time frame 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 a request for relief through the ABCMR.  Any Soldier retiring after this timeframe is considered as having sufficient time to have had access to TEB incentive information.  The applicant retired on 30 June 2016, which was not within this TEB 90-day implementation phase; therefore, he is considered as having sufficient time to have researched the TEB incentive.

		(8)  The Office of Army Education Incentives Program at HRC sympathizes with the applicant and his dependents; however, the time for him to make himself aware of TEB eligibility criteria was before he submitted the retirement request.  

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 on 30 June 2016.  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 on active duty or in the Selected Reserve. 



BOARD DISCUSSION:

After reviewing the application and all supporting evidence, the Board determined that relief was not warranted.  Based upon the advisory opinion guidance and the totality of the circumstances surrounding the case, the Board found no injustice or correction required.   

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.

  


	 
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):

Not Applicable


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 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 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)	 AR20160015807


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