ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20160019649 APPLICANT REQUESTS: transfer of his educational benefits to his children. He also requests a personal appearance before the board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he retired in May 2010. Prior to his separation, he transferred use of his Post 9-11 GI Bill to his wife. At that time, he was not informed that he had to transfer a minimum of 1 month to every dependent in the Defense Enrollment Eligibility Reporting System (DEERS) for them to be eligible to receive benefits from the Post 9-11 GI Bill in the future. He has a daughter going to college next year and he is just now finding out that she is ineligible to receive benefits. He is trying to have it corrected to allow his children to have benefits transferred to them. 3. A review of the applicant’s service records shows the following: a. The applicant's DD 214 shows he entered active duty this period in the Regular Army (RA) on 25 November 1988. b. He served in a variety of assignments stateside and overseas to include, Hawaii, Kuwait,. Iraq and Italy. c. He was honorably retired on 31 May 2010, under the provisions of Army Regulation (AR) 635-200, chapter 12 for sufficient service for retirement. He had 21 years 6 months and 6 days of active service. 4. In the processing of this case, the HRC Incentives Programs Manager reviewed the applicant's case and rendered an advisory opinion on 15 July 2019. The HRC Incentives Programs Manager opined: a. Recommend disapproval of [Applicant's] request to transfer Post 9/11 GI Bill education benefits. All benefits must be transferred before the Service Member separates or retires. b. On 17 February 2010, [Applicant] requested the transfer of 34 months to Xxxxx X. Xxxxxx (spouse), but to no other dependents. His transfer of education benefits (TEB) request was approved on 2 March 2010, with no TEB service obligation. While he was on Active Duty, two other dependents were listed as eligible in the Defense Enrollment Eligibility Reporting System (DEERS) for TEB. Xxxxx X. Xxxxx (child; Date of Birth: ), and Xxxx X. Xxxxx (child; Date of Birth # X___ ####). c. Because he did not transfer at least one month to his other two dependent children before retiring, he cannot make these dependents eligible for TEB while in retired status (per 10 U.S.C. §3319(f) (1 ). Provided the Soldier allocates at least one month of benefits to the respective eligible dependent prior to separation, changes to the amount of months allocated to these dependents can be made at any time (to include once the Soldier leaves military service). If the Soldier fails to transfer at least one month to a qualified dependent, the Soldier may not transfer to that dependent after leaving military service. The TEB website shows no action was taken by the applicant to transfer any benefit to his dependents other than Xxxxx X. Xxxxxx (spouse). d. Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense, and Department of Veterans Affairs (OVA) initiated a comprehensive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. This information was available to [Applicant] until his retirement effective 31 May 2010. His TEB request was effective 17 February 2010, which was not during the 90-day implementation phase, nor during any terminal leave status. e. This office sympathizes with [Applicant] and his dependents; however, the time to make himself aware of TEB eligibility criteria was before he submitted his retirement request. Although TEB is unavailable to him, his military service may make his dependents eligible for other types of assistance. Please refer to the enclosed document containing numerous agencies that may be of assistance. 5. In 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. 6. 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. d. The Post 9/11 implementation began on 1 August 2009. The applicant had nearly 3 years prior to his transfer to the Retired Reserve date to research the eligibility criteria for the TEB incentive. e. The applicant could have obtained the TEB eligibility criteria through the DOD Directive-Type Memorandum 09-003, dated 22 June 2009, paragraph 3a(3)(c); the DA Post-911 GI Bill Policy Memorandum, paragraph 17a(4)(c); DOD, DA, and HRC websites; and various briefings at the installation level. 7. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record showing the applicant failed to transfer at least one month to his other two dependent children before retiring, he cannot make these dependents eligible for TEB while in retired status, per Title 10, U.S. Code, section 3319(f) (1). Board members agreed that Post-9/11 GI Bill is a benefit for the Soldier whereas the option to transfer educational benefits to a dependent is considered an incentive, not an entitlement. For that reason, the Board found insufficient evidence of an error or injustice which would warrant making a change to the applicant’s record. 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. 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 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 Post 9/11 implementation began on 1 August 2009. 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. 3. AR 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 application 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 a request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicant’s do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160019649 5 1