ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20160016423 APPLICANT REQUESTS: * an exception to policy to transfer educational benefits to her family members under the transfer of educational benefits (TEB) provisions of the Post-9/11 GI Bill * a personal appearance before the Board 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) * Orders 09-316-00013 * Department of Veterans Affairs (VA) Certificate of Eligibility 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 policy was announced, she acted quickly in an effort to gain approval prior to her retirement in November 2009. She applied online and remembers seeing her dependents’ names listed on the website for the transfer process. She probably did not select any amounts because it was too far in advance to know which child would use the benefits. Unfortunately, the only documentation she can find is a letter she received in November 2009 indicating she was eligible for the Post 9-11 GI Bill which does not mention anything about dependents. 3. The applicant provides: a. A DD Form 214 which shows she entered active duty on 1 December 2004 in support of Operation Enduring Freedom. She was honorably released from active duty on 12 December 2005. b. Orders 09-316-00013, dated 12 November 2009, which show she was transferred to the retired reserve on 30 November 2009. c. A VA Certificate of Eligibility, dated 16 November 2009, which shows she was entitled to benefits for an approved program of education under the Post-9/11 GI Bill. 4. A review of the applicant’s service records shows the following: a. She commissioned as an officer in the U.S. Army Reserve on 5 May 1989. b. She received her Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) on 11 June 2009 which shows she completed the required years of qualifying reserve service and was eligible for retired pay. 5. An advisory opinion was received from the U.S. Army Human Resources Command (HRC) on 29 January 2019 in the processing of this case. The Incentives Program Manager recommended approval of the applicant’s 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. HRC recommended administrative relief for the applicant as she retired within 90 days of program implementation and met other TEB requirements. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left service during the 90 day implementation phase were not fully aware of the requirement to transfer prior to leaving military service. b. The applicant had at least 6 years of active duty, did not have a negative action flag at the time of her retirement, and would not have incurred a TEB service obligation. Therefore, had she required TEB during the implementation phase and prior to retirement, her TEB request would have been approved. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the 90 day implementation phase. 6. The applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a response. She did not respond. 7. By law, the eligibility to transfer unused benefits is limited to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer or educational benefits to his or her dependent(s) on or after 1 August 2009. A Soldier must have at least 10 years of eligible service to transfer the benefit. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the HRC advisory opinion stating that because the applicant retired within the first 90 days of the program implementation and training of the requirements during the initially phases of the program were not always appropriately conducted, the Board concluded that granting the relief requested was appropriate. 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 an application and the Army approved the request to transfer his Post-9/11 GI Bill benefits to the applicant’s family member prior to 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 benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer or educational benefits to his or her dependent(s) on or after 1 August 2009. A Soldier must have at least 10 years of eligible service to transfer the benefit. ABCMR Record of Proceedings (cont) AR20160016423 3 1