ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20160016968 APPLICANT REQUESTS: Transfer of Education Benefits (TEB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Department of Defense, Manpower Data Center * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes) 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: a. He recently applied to have his children use his GI Bill, which he transferred to them many years ago, but was unable to do so. Upon completion of his 2016 application, he was notified that he lacked the right to have ever transferred his benefits to his children due to the service obligation. b. He applied to transfer the benefit immediately upon his return from a deployment and at the onset of the program itself in 2009. It was not clear that there was an extended obligation in order to be eligible to transfer his GI Bill. He retired in September 2010 and he is being told he should have stayed in the military until October 2010 to have been eligible to transfer the benefit. He would have stayed for an additional few weeks, if he was aware of the requirement. c. He was not aware of the issue until 2016 and has attempted to work with the U.S. Army Human Resources Command and Department of Veterans Affairs, but they both pointed him in to the Army Review Board. He is asking the Army Review Board to take into consideration that he served his country for over 20 years and was honorably discharged with the right to have transferred his GI Bill. d. The initial program rollout of the GI Bill transfer was not clearly articulated and he is now a victim many years later for something that was not his doing. In addition, he was told he was fine and could retire and the benefits would transfer, which included a certificate that said as such. His command at the time (Joint Special Operations Command) was unaware of the rules implemented due to the infancy of the program and it was not passed to him that he needed to stay an extra couple of weeks before retiring. He is unable to obtain the original documents due to the fact that all correspondence were conducted over classified networks inside the command and even processed inside a window (August 2009) that would have satisfied his obligation. The processing took over a month, which added to the confusion and added time to his window, which he did not know he had. 3. The applicant provides a letter from the Department of Defense, Manpower Data Center, dated 23 August 2010, which shows that he had been approved to transfer his unused Post-9/11 GI Bill benefit to member(s) of his immediate family. It shows: * his transfer request date as 29 October 2009 * his transfer status as request approved * his transfer status date as 29 October 2009 * his obligation end date as 28 October 2010 4. A review of the applicant’s service record shows: * he entered active duty on 2 September 1990 * he served in Bosnia from 2 September 1996 to 1 April 1997 * he served in Iraq from 9 November 2003 to 19 December 2003, 10 September 2005 to 15 October 2005, 26 December 2005 to 6 March 2006, 20 July 2008 to 31 December 2008, and 28 March 2009 to 21 August 2009 * he served in Afghanistan from 3 April 2004 to 6 August 2004 and 10 August 2007 to 28 October 2007 * he retired on 31 August 2010 after completed 20 years and 29 days of active service 5. In the processing of this case, an advisory opinion was obtained from the Incentives Program Manager, HRC on 6 November 2018, which states: a. Recommend disapproval of the applicant’s request to waive the Post 9/11 GI Bill Transfer of Education Benefit (TES) service obligation. 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. Additionally, the Soldier must have at least six years on Active Duty or Selected Reserve status, have no current negative action flagging actions, commit to the service obligation and transfer benefits to the dependents through the TES website. All benefits must be transferred before the Service Member separates or retires. b. The Incentives Program Manager did 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; whereas, 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 Post 9/11 GI Bill benefit and the TEB incentive do not require a formal one-on­one counseling, group counseling, nor a reduction in pay to make oneself eligible. A Soldier, acquires eligibility for the Post 9/11 GI Bill benefit through qualified service after 1 O September 2001 and elects the benefit through the VA on VA Form 22-1990. A Soldier acquires TEB eligibility as stated in paragraph 1 and makes dependents eligible (awards at least one month to the dependent) by requesting TEB via the TEB website, and fulfilling the TEB service obligation. (3). On the TEB website, the Soldier must acknowledge and click on nine statements in the TEB website before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. (4). The applicant should have obtained the TEB eligibility criteria through the Department of Defense Directive-Type Memorandum 09-003 (dated 22 June 2009), Attachment 2, paragraph 3a(3)(c), the Department of the Army Post 911 GI Bill Policy Memorandum, paragraph 17a(4), DoD, DA, and HRC websites, and various briefings at the installation level. (5). The applicant had sufficient time to submit a TEB request and research the TEB service obligation requirements before he voluntarily retired on 31 August 2010. He failed to research the TEB incentive requirements accordingly. (6). He submitted a TEB request on 29 October 2009. His servicing Career Counselor approved the TEB request on 29 October 2009 with a TEB service obligation of 28 October 2010 (one-year TEB service obligation). However, the TEB service obligation should have been 28 October 2011 (two-year TEB service obligation) because he would have attained 20 years of service on 2 September 2010 based on a Basic Active Service Date (BASD) of 2 September 1990 per DA Post 9/11 GI Bill Policy Memorandum, paragraph 17a (4)(d). (7). He also submitted a voluntary request for retirement with a projected retirement effective date of 31 August 2010. His retirement order was published on 3 February 2010 and he was provided copies. Before and after that time, he had an opportunity to recognize he would not have been able to fulfill the TEB service obligation. He made himself ineligible for TEB when he requested retirement with a retirement effective date of 31 August 2010, which was before the TEB obligation end date. (8). On 29 September 2015, their office received an inquiry from the VA Regional Processing Office about the applicant not fulfilling the TEB service obligation. Their office rejected his TEB request 29 September 2015 because he did not fulfill the entire TEB service obligation prior to his retirement. (9). Their office 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. c. While reviewing his record, their office identified that the applicant’s installation Military Personnel Division and commander erroneously calculated/approved his retirement years due to a prior-service split in Basic Combat Training (BCT) and Advanced Individual Training (AIT) while serving in the United States Army Reserve, and a miscalculation on the DD Form 214. Therefore, he had only 19 years, 11 months, 29 days as of 31 August 2010 per the enclosed DA Form 1506 from HRC Enlisted Transition Branch, on 16 October 2018. He would have fulfilled at least 20 years of service for retirement on 30 September 2010. He retired one month too soon, and two months before fulfilling the TEB obligation end date. For the applicant to have 20 years of service, the following actions may need to occur: (1). Amend Orders 034-02 dated 3 Feb 2010 to amend retirement effective date of 31 August 2010. (2). Amend Orders 034-03 dated 3 Feb 2010 to amend reporting date from 31 August 2010 to 30 September 2010. (3). Generate DD Form 215 to amend: * block 12a (Date Entered AD This Period): 1991 01 02 * block 12b (Separation Date This Period): 2010 09 30 * block 12c (Net Active Service This Period): 19 years, 11 months, 29 days * block 12d (Total Prior Active Service): 00 years, 04 months, 23 days * block 12e (Total Prior Inactive Service): for HRC Enlisted Transition to determine 6. The advisory was forwarded to the applicant on 7 November 2018. He responded on 21 November 2018 and stated: a. He first wants to take the time to thank the Army Review Board for reviewing his case in transferring his educational benefits to his dependents. He made every attempt in good faith to transfer the benefits as instructed by his command and the knowledge he had garnered from directives published. The initial information passed to him was there was a year waiting period, which would have been met since he submitted the packet in early of August 2009, he sees now that it did not get processed for an extra month through human resources. Although he may not be satisfied with the decision and result of the Review Board, he accepts their decision as being final. b. The second point he wanted to raise was the curious changing of his retirement date and modification done via a DD Form 215. He retired on 10 September, his terminal leave carried him through to that date and was the date was he was separated. As you well know, he did not determine his retirement date, it was generated from his command and HRC and then passed to him. The date of 30 August has been raised as a date, there is confusion over that. On or about 30 August he was required to hand in his active duty CAC card in lieu of a contractor CAC card due to him working for the USG OCON US while on terminal leave, this in no way changed his retirement date to 30 August. The personnel department at Fort Belvoir stated he could not hold a contractor and Active Duty CAC card simultaneously, even for the 12 days to bring him to the 10th of September. This would make the original assessment of active duty time 20 years, 10 days versus what has been calculated on the DD215, making the original retirement correct and accurate, again even though he did not determine that. He request the DD215 not be processed since there was no missing days and the timeline is correct currently. c. Again, thank you and the Board for considering the transfer request. There was mass confusion at the onset of the program. He thought that all the details and requirements had been met when he originally submitted it in August 2009. For the retirement issue, he thinks it’s just a misunderstanding, which requires no changes to be made and was fine already. He also ask for instructions on how to reclaim his educational benefits and have them transferred back to himself. As unfortunate, as it is to not be able to give them to his children, there are 4 years of education benefit he can use to better himself. He appreciates everyone help on this review. 7. A Soldier must agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions and the advisory opinion were carefully considered. The applicant was approved to transfer his education benefits to his children on 23 August 2010. The VA notified him his children was not able to use the benefit because he did not meet a service remaining requirement. An advisory official noted he missed the service remaining requirement by two months as his retirement date was erroneously calculated and his separated early. The Board agreed the miscalculation was of no fault of his, and recommend approval of his request to transfer benefits. 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 he met all service remaining requirements needed to maintain eligibility to transfer education benefits to his children as shown in his 23 August 2010 Post-9/11 GI Bill letter from the defense Manpower Data Center. 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. 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. DOD Directive-Type Memorandum (DODDTM) 09-003, Post-9/11 GI Bill, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an 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. 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 currently serving on active duty or a member of the Selected Reserve on or about 1 August 2009. a. A member 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 benefits to eligible children. b. A member may only transfer to eligible dependents. To be considered an eligible dependent, the spouse or child must be enrolled in Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible dependent status upon reaching age 21 or at marriage. Eligible dependent 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. c. A member must also agree to serve the prescribed additional service obligation based on the time the member had in service on 1 August 2009. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016968 0 8 1