ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: \ BOARD DATE: DOCKET NUMBER: AR20160017940 APPLICANT REQUESTS: Correction of his record to show Post-9/11 GI Bill Transfer of Education Benefits (TEB) to his dependent. 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), dated 31 July 2011 * Department of Defense Manpower Data Center (DMDC) letters, dated 27 March 2014 and 4 February 2016 * Email correspondence with the U.S. Army Human Resources Command (HRC) 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 he chose to retire on the date but was told his two-year commitment was achieved for the transfer of his benefits to his child. The website showed the approved transfer and the certificate was validated in August 2016 by the Veterans Affairs (VA) representative at North Carolina Agriculture and Technical State University when his daughter was beginning her freshman year. Then on 2 September 2016 he received an email from Ms. informing him his obligation was until 2 August 2011 and since he retired on 31 July 2011 the benefits transfer was rejected. He inquired about what he needed to do and was told to file an appeal with the Board. He feels his two-year commitment was met as it does not say 730 days. He is asking the Board to please review and possibly validate that this should be allowed. 3. A review of the applicant’s service records shows the following on: * 18 October 1990 – the applicant enlisted in the Regular Army * 31 July 2011 – the applicant was honorably retired from active duty, DD Form 214 shows he completed 20 years, 9 months, and 13 days of net active service 4. The applicant provides: * DMDC letters showing the applicant’s requested transfer date was 3 August 2009, he was approved for the TEB and his end obligation date was 2 August 2011 * email correspondence with an HRC official advising the applicant to apply for relief with the ABCMR 5. On 20 March 2019, HRC reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Incentives Program Manager opined that: a. The applicant submitted a TEB request on 3 August 2009. His TEB request was approved on 3 August 2009 with a TEB service Obligation End Date (OED) of 2 August 2011. Because he attained 20 years of service on 18 October 2010, he qualified for a two-year Additional Duty Service Obligation (ADSO), instead of the standard 4-year ADSO, per the Department of the Army Post-9/11 GI Bill Policy Memorandum, paragraph 17a(4)(d). b. The applicant’s dependents are not eligible to receive TEB because he did not fulfill his service obligation. He transferred 36 months to his daughter. On 2 September 2016, their office received an inquiry from the VA Regional Processing Office (RPO) Atlanta, GA to confirm he did not fulfill the TEB service obligation. Their office confirmed he did not fulfill the TEB service obligation, so their office rejected his TEB request on 2 September 2016, and emailed him and the VA RPO. Unfortunately, he missed fulfilling his TEB ADSO by two days. Their office sympathizes with him; however, they are bound by the policies that govern the Post-9/11 GI Bill TEB so they had to reject his TEB request. c. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. The ex parte was returned as undeliverable with no forwarding address, so the applicant was unable to respond. 7. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The preponderance of evidence shows the applicant was only two days short of fulfilling his retention incentive. The applicant intended to fulfill his commitment and DMDC informed him that his request to transfer benefits to his daughter had been approved. Therefore, it would be equitable to correct his records to show he completed the required service obligation and remained eligible for the TEB. 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 that the evidence presented was 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 fulfilled his service obligation and remained eligible for TEB, and * paying him any benefits owed him 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 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. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. b. A Soldier 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 to eligible children. c. A Soldier must also agree to serve the prescribed ADSO based on the time in service the Soldier had on 1 August 2009. 3. On 22 June 2009, the Department of Defense established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and on or after 1 August 2009, is eligible for the Post-9/11 GI Bill and, in pertinent part, is or becomes retirement eligible during the period 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 service or 20 qualifying years of Reserve service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017940 4 1