ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 1 October 2019 DOCKET NUMBER: AR20160019017 APPLICANT REQUESTS: In effect, an exception to policy to transfer his educational benefits to his son under the Transfer of Education 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 in effect, he was unable to transfer his Post 9/11 Bill educational benefits to his dependent (18 year old son who was at the time in his senior year of High School). His son is eligible in DEERS (Defense Enrollment Eligibility Reporting System), although not eligible to receive his Post 9/11 Bill transferred benefits. In DEERS it shows “not eligible” appears instead of a link showing a yes in the transfer column for him under the family member column. The error was caused because the Post 9/11 bill took effect 1 August 2009, language was still being worked out to handle service members who were already in the window of retirement, in which he was in the transition of an approved retirement of 31 August 2009. He was not aware at that time of his son’s dependent status as ineligible in DEERS since he was in the window of retirement when the bill was passed. His dependent was in his last year of high school projected to have graduated May 2017 and the applicant really needs this benefit to further his son’s education. He is a retired disable veteran on a fixed income and unable to pay for his son’s college education. 3. The applicant provides his DD Form 214 which shows he was honorably retired on 31 August 2009. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Mississippi Army National Guard on 12 May 1988. b. As reflected on his DD FormM 214, on 31 August 1989, he was released from active duty for completion of active duty for training. c. He served in the Regular Army in a variety of assignments from 4 October 1989 until 20 March 1999 when he was honorably discharged for completion of required active service on 31 August 2009. d. DD Form 2648 (Pre-separation Counseling Checklist for Active Component Service Members) shows in block 13a (Education/Training) “yes” for education benefits. e. DD Form 214 shows he served in the U.S. Army Reserve from 18 April 1999 until 31 August 2009 when he was honorably retired by reason of sufficient service for retirement. f. There is no indication he applied for a transfer of his education benefits to his family member while on active duty and/or the Selected Reserve. 5. On 19 December 2018, Human Resources Command (HRC) responded to an ABCMR request for advisory opinion pertaining to the applicant. HRC recommended administrative relief based on the following: a. The applicant had at least six years of active duty, did not have a negative action flag at the time of his retirement, and would not have incurred a TEB service obligation; therefore, had he requested TEB during the implementation phase and prior to retirement, his TEB request would have been approved. b. 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. The U.S. Army, Department of Defense, and Department of Veterans Affairs (DVA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and TEB. c. His last day in the service was 31 August 2009. He was added to the Retired list on 1 September 2009 which was within the 90-day implementation phase. d. In previous cases, the ABCMR granted relief based upon the terminal leave or retirement date within the 90-day implementation phase. 6. On 26 July 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response and/or a rebuttal. He did not respond. 7. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of 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, have at least 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. a. 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 educational benefits to a dependent is considered an incentive, not an entitlement. The transferability 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one- on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post-9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the VA using a VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least 1 month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation (if applicable). c. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, Board members found the 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. The applicant retired on 31 August 2009 which is within 90 days of program implementation. Therefore, the Board found there to be an injustice which would warrant a correction to the applicant’s military record. 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 timely filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his family member prior to his 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 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of 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, have at least 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. a. 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 educational benefits to a dependent is considered an incentive, not an entitlement. The transferability 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one- on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post-9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the VA using a VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least 1 month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation (if applicable). c. 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. ABCMR Record of Proceedings (cont) AR20160019017 2 1