ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20160019539 APPLICANT REQUESTS: in effect, transfer Post-9/11 GI Bill benefits to her dependents. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs letter acknowledging receipt of applicant’s application for benefits * Department of Veterans Affairs letter acknowledging receipt of applicant’s application for transferring entitlement to her dependent * DD Form 214 (Certificate of Release or Discharge) 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 in effect, she was not afforded the opportunity to transfer her Post-9/11 GI Bill benefits to her dependents prior to her separation from the United States Army Reserve (USAR). At the time of her separation, she was not provided information concerning this entitlement. Even though this benefit had begun prior to her separation the information was not disseminated to her prior to her retirement from the USAR. She requests to have her Post-9/11 GI Bill benefits be transferred to her dependent daughter X__. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 22 January 1980. b. She was released from active duty on 21 January 1984 with an honorable characterization of service under provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 4 (Separation for Expiration of Service Obligation). She was assigned to the USAR Control Group (Reinforcement). Her DD Form 214 shows that she completed 4 years of active service. c. USAR Personnel Center Order Number C-04-902209, dated 3 April 1984, she was assigned to 4010th U.S. Army Hospital on 27 April 1984. d. She reenlisted in the USAR on 28 July 1985. e. Her DD form 214 shows she was ordered to active duty for training on 4 August 1986. She was released from active duty on 2 August 1987 with an honorable characterization of service. Her DD form 214 shows she completed 11 months and 29 days of active service. f. She reenlisted in the USAR on 6 June 1989 and reenlisted in the USAR on 7 April 1991. g. USAR Personnel Center Order Number R-05-002634, dated 3 May 1994, she was ordered to active duty in the Active Guard and Reserve (AGR) program on 10 July 1994. h. She reenlisted in the USAR on 13 February 1997. i. USAR Personnel Center memorandum dated 21 September 2000, she was notified of eligibility for retired pay at age 60 (20 Year Letter). j. She reenlisted in the USAR on 11 December 2002. k. DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 11 April 2008, she extended her reenlistment for 10 months. l. She was released from active duty on 30 September 2009 with an honorable characterization of service under provision of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 12 (Retirement for Length of Service). Her DD Form 214 shows that she completed 15 years, 2 months, and 21 days of active service. m. U.S. Army Human Resources Command (HRC) Order Number C-03-990182 dated 4 March 2009, she was placed on the retired list on 1 October 2009. 4. In an advisory opinion, dated 16 July 2019, an official from the U.S. Army Human Resources Command recommended approval of the applicant's request. a. The applicant meets all qualifying requirements and was on transition leave during the 90-day implementation phase. Despite efforts to disseminate information about Transfer of Education Benefits (TEB), many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service. b. In previous cases, the Army Board for Correction of Military Records (ABCMR) granted relief based upon the terminal leave or retirement date within the 90-day implementation phase. 5. The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal however, it is unknown whether the applicant replied. 6. By 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions and the advisory opinion were carefully considered. HRC guidance provides for the granting of TEB for members who retired within 90 days of the program’s implementation. The Board agreed the applicant is authorized 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 the applicant filed and the Army approved, in a timely manner, her application to transfer her unused education benefits to her eligible dependent(s), effective 1 August 2009 and provided all other program eligibility criteria were met, in accordance with the Transfer of Education Benefits provisions of the Post-9/11 GI Bill. 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 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 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. 3. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. 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: 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. 4. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the reserve components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019539 4 1