ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20170001503 APPLICANT REQUESTS: his GI Bill benefits be transferred to his dependents APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of eligibility for retired pay at age 60, dated 23 January 2007 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 during the end of his service before and during out-processing, he was never informed about education benefits for Post 9/11 GI Bill. He did not know that until now that if he wanted to transfer his education benefits prior to his retirement. He contacted the Kentucky National Guard Education Department and informed that he would have to request his records to be amended so he could transfer his Post 9/11 GI Bill benefits to his daughter, X__ X__ and stepson, X__ X__ X__ for the amount of 24 months each. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 August 1981. b. He was honorably discharged from active duty during the period ending on 19 September 1991 and the period ending on 1 March 2005. c. He was honorably discharged from the National Guard on 30 September 2006 and placed in the Retired Reserves effective 30 September 2006. 4. On 5 September 2019, the National Guard Bureau provided an advisory opinion and recommended disapproval of the applicant's request. The advisory states: a. The applicant, a former member of the Kentucky Army National Guard (KYARNG) states that he was not informed about the option to transfer his post 9/11 GI Bill to his children and that he would have to do so prior to retirement. b. In accordance with Title 38 USC Chapter 33, Post 9/11 was made effective by law on 1 August 2009. c. The applicant was discharged to the retired reserves on 30 September 2006, which was three years prior to the post-9/11 GI Bill transfer of education benefits program, therefore, making him ineligible. d. This opinion was coordinated with the Army National Guard Education Services Branch. The Kentucky National Guard concurs with this opinion. 5. On 13 September 2019, a letter was sent to the applicant notifying him of the advisory opinion and for the applicant to respond to the opinion within 30 days of the letter. No response was received. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the finding and recommendations of the advisory opinion, as well as a lack of any form of rebuttal submitted by the applicant, the Board agreed with the National Guard Bureau advisory for disapproval since the applicant was not eligible for the incentive due to his service occurring prior to the benefit being available. 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 (Armed Forces), U.S. Code, section 1552(b) (Correction of Military Records: Claims Incident Thereto), provides that applications for correction of military records must be filed within 3 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 3-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, section 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. a. 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: * has at least 6 years of service on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or, * has at least 10 years of service (active duty and/or Selected Reserve), 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, * is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013; a service member is considered retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service b. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill; the counseling will be documented and maintained in records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. c. During the initial implementation of this program, many Soldiers in all grades were confused as to their eligibility and/or the application process. This confusion was exacerbated by the heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave during the 60 to 90 days of the program implementation. In addition, officials at some education centers may have also been confused with regard to the implementation instructions and may not have conducted proper counseling. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170001503 3 1