ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20170000237 APPLICANT REQUESTS: his record be corrected to show he transferred his Post-9/11 GI Bill educational benefits to his son in a timely fashion APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Petition with various exhibits 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, through his attorney, states that he was eligible for Post-9/11 GI Bill benefits and satisfied the transferability requirements while serving in the Rhode Island Army National Guard (RIARNG). He was never properly advised, and was consequently unaware, of the requirement that he actually transfer the benefits before retiring. Had he known, he would have transferred his benefits to his son, an eligible family member. He relies on the decision in Thompson v. United States and notes the tremendous financial burden that would be imposed on his family and son, if he is unable to obtain the requested relief. 3. The applicant submits an eight-page “Petition” with sixteen exhibits prepared by a Judge Advocate working on his behalf. 4. A review of applicant’s service record shows: a. He enlisted in the Army National Guard of the United States on 23 February 1991. b. In March 2013, a Qualitative Retention Board (QRB) did not select him for continued unit participation. On 26 June 2013, he was honorably separated from the RIARNG and transferred to the Retired Reserve having completed 22 years, 4 months, and 4 days of service. 5. An advisory opinion was received from the National Guard Bureau on 10 May 2017 in the processing of this case. The Chief, Personnel Policy Division recommended approval of applicant’s request to transfer Post-9/11 GI Bill education benefits. The advisory official stated: a. While serving in the RIARNG, the Soldier became eligible for Post-9/11 GI Bill benefits. The Soldier satisfied the requirements to transfer the benefits to an eligible family member. The Soldier did not transfer the benefits prior to retiring because he was unaware of this requirement and was not advised to do so. b. There is no evidence that the Soldier attempted to transfer the GI bill benefits in the period between the start of the Post-9/11 GI Bill Transfer program in 2009 and his retirement in 2013. However, the Soldier’s Department of the Army (DA) Form 4836 dated 8 January 2013, extending his enlistment to 14 August 2017 does demonstrate his willingness to continue serving and meets the requirement for the Soldier's commitment to four additional years of service. c. Based on the Soldier’s statement, it is reasonable to assume had he known about the requirement to request transfer while serving, he would have taken the appropriate steps to initiate the transfer of benefits. The Soldier demonstrated his desire to continue serving, but due to the results of the QRB, he was not afforded the opportunity. In addition, had the Soldier requested the Transfer of Education Benefits when he executed his DA Form 4836, the Army National Guard would have adjusted his Obligation End Date (OED) to the date the QRB directed his separation. 6. A copy of the advisory opinion was provided to applicant. He did not submit a response. 7. By law, the eligibility to transfer unused benefits is limited to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer or educational benefits to his or her dependent(s) on or after 1 August 2009. A Soldier must have at least 10 years of eligible service to transfer the benefit. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the NGB advisory finding that the applicant was not properly trained about the requirement to transfer benefits while serving and that it is reasonable to assume had the applicant known about the requirement, he would have taken the appropriate steps to initiate the transfer of benefits, the Board concluded that permitting the applicant to retain his ability to transfer 9/11 educational 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 his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his eligible family member(s) 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, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. 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 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(s) on or after 1 August 2009. 3. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, and: 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 service in the 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. 4. DOD policy further states the Secretaries of the Military Departments will provide active duty participants 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. 5. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. ABCMR Record of Proceedings (cont) AR20170000237 3 1