ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20160009604 APPLICANT REQUESTS: in effect, an exception to policy to the Post 9/11 GI Bill transfer eligibility benefits (TEB) and to be able to enroll his two children into the program for educational benefits. 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) for the period ending on 30 April 2010 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 that during separation activities in preparation for retirement from the Army, he was not properly advised or instructed on how to transfer his Post 9/11 GI Bill entitlement to his children. He has been inquiring through the Department of Veterans Affairs (VA) for years on how to obtain this entitlement for his children. The VA advised him to submit an application to this Board to change his military record. 3. The applicant provides a copy of his DD Form 214 for the period ending on 30 April 2010. 4. The applicant’s service shows the following information: a. DA Form 71 (Oath of Office) shows he took his oath of office in the Regular Army on 22 May 1985. b. Record of Emergency Data sheet shows he has two biological children, his daughter and his son His DD Form 214 shows he was retired based on sufficient length of service on 30 April 2010. He completed 24 years, 11 months, and 9 days of net active service. c. In reviewing his electronic personnel record, his DA Form 137-2 from U.S. Army Garrison – Hawaii is not filed with his DD Form 214. (This form is used during out- processing in preparation for retirement. One of the key installation activities that requires a retiree to clear is the Education Center.) d. A review of his service record does not reflect any evidence that the applicant was given educational counseling regarding TEB prior to his retirement. 5. In the processing of this case, an advisory opinion was obtained from the Army Education Incentives Team at HRC. It states: a. The officials recommended disapproving the applicant’s request to transfer Post 9/11 GI Bill education benefits. Public Law 110- 252 establishes 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 Active Duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the DOD TEB website, http://milconnect.dmdc.mil. All benefits must be transferred before the Service Member separates or retires. b. 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 education benefits to a dependent is considered an incentive, not a benefit. The transfer 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. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. c. The TEB incentive does not require one-on-one counseling or group counseling. There was a 90-day implementation phase for those retirees retiring from 1 August 2009 through 31 October 2009 wherein they could apply to the ABCMR for administrative relief. After that period, Soldiers had sufficient time to make an application through the TEB website. 6. The applicant was provided a copy of the advisory opinion; however due to an expired mailing address it appears he may not have received a copy. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board noted the advisory official’s observations that the applicant retired well outside of the 90-day TEB implementation phase and that counseling on TEB is not a requirement. The Board agreed the applicant had sufficient opportunity to request TEB prior to his retirement and concurred with the recommendation of the advisory official that the applicant’s request should be disapproved. Based on a preponderance of the evidence, the Board determined the applicant’s record should not be corrected to show he made a timely request for TEB. 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 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. 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: a. A Soldier must be currently 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 may only transfer to eligible dependents. To be considered an eligible dependent the spouse or child must be enrolled in Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible dependent status upon turning age 21 or at marriage. Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of the State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program. The Army, DOD, and Department of Veterans Affairs (VA) initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. g. A Soldier must initially request to transfer benefits on the DOD TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access. The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. h. Changes to the amount of months allocated to dependents can be made at any time, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation. If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 3. Army Regulation 600–8–101 (Personnel Processing (In-, Out-, Soldier Readiness, and Deployment Cycle) provides that DA Forms 137–1 and 137–2 (Installation Clearance Record) are required for all Soldiers departing or transitioning from active duty. DA Forms 137–1 and 137–2 identify the out-processing stations requiring clearance from all Soldiers departing or transitioning from the Active Army. Each activity must complete the appropriate section of the form and the remaining required information, and sign (not initial) the appropriate space. Installations will determine how these clearance requirements will be accomplished. Installation- and/or community- level out-processing stations include the Education Center. 4. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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 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. 5. DOD Instruction Number 1341.13 (Post-9/11 GI Bill) establishes policy and assigns responsibilities for the implementation of chapter 33, Title 38, U.S. Code (also known as the Post-9/11 GI Bill). Any service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she meets one of these conditions: a. has at least 6 years of service in the Military Services (active duty or Selected Reserve), on the date of approval and agrees to serve 4 additional years in the Military Services, from the date of election. b. has at least 10 years of service in military services (active duty or Selected Reserve), on the date of approval, 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. c. is or becomes retirement eligible during the period 1 August 2009 through 31 July 2012, and agrees to serve the additional period, if any, specified in this DOD Instruction. A Service member is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed pursuant to section 12732 of U.S. Code. * for individuals eligible for retirement on 1 August 2009, no additional service is required * for individuals eligible for retirement after 1 August 2009, and before 1 August 2010, 1 year of additional service was required * for individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, 2 years of additional service was required * for individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, 3 years of additional service was required 6. Title 38 U.S.C. Section 3319(f)(1), Directive-Type Memorandum (DTM) 09-003, Post 9/11 GI Bill, as amended, which has been superseded by DODI 1341.14, Post 9/11 GI Bill, requires the military departments to provide direct pre-separation counseling on Post 9/11 GI Bill benefits and document this counseling accordingly. 7. In the legal case Thompson v. United States. The Court in Thompson noted the ABCMR had failed to explain how not providing the required counseling became a non- requirement because there was a public campaign. Since the transferability requirements were established, there was an extensive effort by DOD, VA and the Army to educate service members and the public about said requirements. However, it is reasonable to assume that a service member, who retired close in time (nine months) after the Post 9/11 GI Bill was implemented, had some confusion during the early stages of implementation. 8. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160009604 1 1