ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20170001873 APPLICANT REQUESTS: in effect, an exception to policy to transfer his unused education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 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) 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: a. He served in 26 years of active service, with 3 years under Title 10, from May 1983 to April 1986. The last 23 years were all Title 32, Active Guard Reserve (AGR), with the New Jersey Army National Guard (NJARNG). He retired on 31 March 2010. However, prior to his transition briefing in April 2009, he went on terminal leave in October 2009. At that time, he was eligible to transfer Post 9/11 GI Bill benefits to his dependents. He was not made aware of the fact that he needed to complete this transfer to his children while still on active duty. He went through the 4-day transition briefing and they made no mention of this requirements. A staff member of the ARNG Education Services Branch explained to him that they attempted to contact as many people as possible, but were unable to contact everyone. As a matter of fact, the staff member had his name, but unfortunately was unable to make contact with him. b. He believes the contributing factors of him going through the retirement process beginning in April 2009, the changing of the 9/11 GI Bill criteria for Title 32 Soldiers, and the transferability of the 9/11 GI Bill to dependents during this time; led to him being unable to transfer this benefit to his children. As he was advised, an attempted was made to contact many Soldiers, but they were unsuccessful. c. When he initially retired, his dependents were eligible for him to transfer his benefits to them. He did not transfer this benefits to his children because he knew it was irreversible. When he retired his children were 12 and 9 years of age. He wanted to ensure they were going to go to college before he did a transfer. When his oldest child began applying to colleges and it was apparent he was going to college, he went online to transfer 50 percent of the benefit to each child. This is when he discovered they were ineligible. 3. Review of the applicant's service record shows: a. He enlisted in the NJARNG on 27 January 1987. He entered on active duty in an AGR status on 27 April 1987. b. On 4 April 2004, he was issued a 20-Year advising of the completion of the required years of qualifying Reserve service and eligibility for retired pay. c. He was honorably retired on 31 March 2010. His DD Form 214 shows he completed over 25 years of total service. 4. On 23 August 2019, an advisory opinion was received from the National Guard Bureau (NGB), in the processing of this case. The NGB official recommended approval of the applicant’s request and stated: a. The applicant served approximately 22 years on Title 32 AGR duty, which would meet the eligibility criteria under the guidance in Public Law 111-337, dated January 2011. The applicant believed he was inadequately informed about the requirements to transfer his 9/11 GI Bill benefits since Title 32 Soldiers were not granted that ability until 2011. While the applicant was still eligible to utilize the benefits based on the retroactive guidance outlined in Public Law 111-377, there was no intentional or unintentional injustice committed against the applicant at the time of his retirement. b. Based on the available evidence and current and previous policies and law, it was the opinion of the NGB that the applicant be granted full relief and provided eligibility to transfer his education benefits to his dependents. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. In his response, the applicant stated: a. He wanted to thank the Board for its time and attention to this matter. He served 26 years in the military. Upon retiring in March 2010, he was not informed that the laws had changed for transfer of education benefits to dependents. He was unaware he needed to transfer his benefits prior to retiring. The 9/11 GI Bill would be a tremendous benefits to his family. He and his wife do not make much money and it would greatly assist in lessening the financial struggles with college tuition for his children. He would be extremely grateful to receive this benefit. 6. The DOD, the VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent. 7. On 4 January 2011, the Post 9/11 Veterans Educational Improvement Act of 2010 was signed into law (Public Law 111-377). The law expanded the definition of active duty to include specific Title 32 Soldiers. The law requires a member to be on active duty or in the Selected Reserve at the time he/she requests the transfer. A change to this law is not within the purview of this Board. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The applicant’s contentions and the advisory opinion were carefully considered. The Board agreed with the comments and recommendation provided by the NGB advisory official, and determined the applicant should retain his eligibility to transfer education benefits to his dependents. 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, his application to transfer his unused education benefits to his 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. 12/3/2019 X CHAIRPERSON Signed by 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, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were 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. The policy states 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 may transfer education benefits to eligible dependents. 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 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 transfer of educational benefits (TEB) request date. b. Soldiers receive counseling on all GI Bills, including the Post 9/11 GI Bill benefit and the TEB incentive at various venues throughout the Soldier's career (in/out-processing at Education Centers, Commander's Calls), upon demobilization or release from active duty, and during the last year before separation or retirement (Soldier for Life-Transition Assistance Processing. Soldiers have had access to and received counseling on GI Bill benefits since 2002 on-line and in-person. c. All of the TEB information available to Soldiers included the requirement to transfer while either in active duty or Selected Reserve status and the possible requirement to serve an additional service obligation. Specifically, the DA Post 9/11 GI Bill Policy Memorandum, stated, "For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component." It also stated, "Time for Transfer. A Soldier approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed." NOTHING FOLLOWS