ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 October 2019 DOCKET NUMBER: AR20160017346 APPLICANT REQUESTS: reversal of Human Resources Command (HRC) decision to deny transfer of educational benefits to his two dependent children under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. He also requests 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) * Veteran Affairs (VA) Form 22-1990 * VA Educational Letter [Applicant Son] * VA Educational Letter [Applicant Daughter] 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 (ABCMR) 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 on 7 May 2010, while assigned to Patrick AFB, FL, he transferred his Post 9/11 educational benefits to his spouse and two children. At the time, he had 18 years, 9 months, and 15 days in the Army and had just returned from Afghanistan. Upon his return, he received orders to Fort Riley, KS and elected to retire in lieu of permanent change of station. In August 2010, he submitted a DA Form 4187 (Personnel Action) requesting to retire in 24 months, however, he was denied and told by the branch manager to either accept the orders or retire on or about his 20 year anniversary. He submitted his paperwork and was approved for retirement for 31 December 2010. He inquired about the transfer of his Post 9/11 benefits and was informed he met the requirements to transfer his benefits based on the exemption, “if a veteran is retirement eligible then no additional service will be required.” He retired and in May 2014, he contacted the VA to inquire about the benefits and was assured that all he needed to do was submit the request for approval letter (see full statement). 3. The applicant provides the above referenced documents to include: a. Veteran Affairs (VA) Form 22-1990, dated 28 June 2011, the applicant’s request for VA educational benefits for a Masters of Arts in Counseling. b. VA Educational Letter [Applicant], dated 21 September 2016, which certifies the applicant transferred 17 months and 9 days of full-time Post-9/11 educational benefits to his dependent son, X_X_. c. VA Educational Letter, dated 5 October 2016, which denied her claim for Post-9/11 educational benefits to his dependent daughter, X_X_. 4. A review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 16 October 1990. b. He had continuous honorable service from 16 October 1990 to 31 December 2010. He served in a variety of stateside or overseas assignments, including Kuwait, Iraq and Afghanistan, and he attained the rank/grade of master sergeant (MSG)/E-8. c. He was honorably retired on 31 December 2010. His DD Form 214 shows he completed 20 years, 12 months, and 31 days of active service. 5. On 21 February 2019, the Army Review Boards Agency received an advisory opinion from the U.S. Army Human Resources Command (HRC) which recommended disapproval of the applicant’s request to transfer Post 9/11 GI Bill education benefits to his two dependent children. The official stated: a. The applicant’s dependents are not eligible to receive TEB because he did not fulfill his service obligation, however, his dependents requested a Certificate of Eligibility (CoE) for TEB from the VA submitting a VA Form 22-1990e. b. On or around 21 September 2016, [Applicant] dependent child X_X_ applied to the VA for a CoE and the VA erroneously awarded the CoE. On 5 October 2016, [Applicant] dependent child X_X_ applied for CoE and the VA correctly sent a Letter of Denial because [Applicant] did not fulfill his service obligation. On 4 October 2016, HRC received an inquiry from the VA Regional Processing Officer to confirm [Applicant] did not fulfill the TEB service obligation. HRC confirmed [Applicant] did not fulfill the TEB service obligation, so HRC rejected his TEB request on 4 October 2016 and notified him by email. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. The applicant did not respond. 7. 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. 8. On 22 June 2009, the Department of Defense (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. 9. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board considered the applicant's statement and the review and conclusions of the advising official. The Board found that the applicant was not retirement eligible when he submitted his TEB request and did not fulfill the required service obligation to be eligible to transfer his education benefits. Based upon a preponderance of evidence and the conclusions of HRC advisory opinion, the Board concluded that there was insufficient evidence of an error or injustice which would warrant a correction to the applicant’s military service record. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 0 X CHAIRPERSON 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 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, the Department of Defense (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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. NOTHING FOLLOWS