BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20170004140 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20170004140 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. _____________x___________ CHAIRPERSON 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. BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20170004140 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his records to show he elected to transfer his Post-9/11 GI Bill educational benefits to his dependent(s). 2. The applicant states the reason for the disapproval of his request to transfer educational benefits (TEB) was because he did not request transfer of his Post-9/11 GI Bill educational benefits prior to being selected under the Selective Early Retirement Board (SERB). He states that he is still on active duty and his retirement date is not until 31 July 2017. He adds that under Department of Defense (DoD) Instruction (DODI) Number 1341.13 (Post-9/11 GI Bill) he should still be able to transfer his benefits since Enclosure 3 (Procedures), paragraph 3 (Transferability of Unused Education Benefits to Family Members), subparagraph a (Eligible individuals), item (2) states, "Has at least 10 years of service in the Military Services (active duty or Selected Reserve), National Oceanic and Atmospheric Association (NOAA) Corps, or U.S. Public Health Service (PHS) 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." 3. The applicant provides a copy Military Personnel (MilPer) Message Number 13-089, issued 4 April 2013, subject: Fiscal Year 2013 (FY13) SERB, Army Competitive Category (ACC) and email messages. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (infantry) on 6 August 1981. He transferred to the Army National Guard of the United States and is currently serving as an aviation officer in the rank of lieutenant colonel (LTC)/pay grade O-5. 2. An Army National Guard Retirement Points History Statement shows he attained 20 years of qualifying service for retirement purposes on 5 August 2004. 3. A review of the applicant's military personnel records failed to reveal evidence of a request to TEB to any of his family members from the effective date of implementation (1 August 2009) through 6 September 2016. 4. In support of his application the applicant provides the following documents. a. MilPer Message Number 13-089, issued 4 April 2013, subject: FY13 SERB, ACC, that shows the Secretary of the Army authorized the use of a SERB to convene on or about 13 August 2013 to consider LTCs and colonels (COLs) in the ACC meeting the statutory eligibility. Specifically, in pertinent part: LTCs who had been at least twice non-selected for promotion to COL as of the FY12 COL, Army Promotion Selection Board; were not on a list recommended for promotion to COL; had not been approved for voluntary retirement; and were not to be involuntarily retired under any provision of law during FY13 or FY14. (1) It shows officers could request voluntary retirement (with an effective date not later than (NLT) 30 September 2014) in order to not be considered by the SERB. If selected for early retirement by the SERB, the officer must retire NLT than the first day of the seventh month following the SECARMY's approval of the results. (2) Paragraph 6 of the message shows, "Impact on Montgomery GI Bill (MGIB) and Post-9/11 GI Bill Benefits: If you otherwise meet Department of Veterans Affairs MGIB or Post-9/11 GI Bill eligibility requirements, your selection for involuntary separation will not impact benefits for your own use. In addition, members who transferred benefits to dependents prior to SERB selection will retain their transfer and not face recoupment if they agree to serve until the mandatory date of separation established for them by the SERB. However, officers who elect to voluntarily separate/retire in lieu of SERB consideration without completing their Post-9/11 GI Bill active duty service commitment will forfeit the transferred benefit, and any benefits that dependents used will be treated as an overpayment subject to recoupment by the Department of Veterans Affairs. For questions regarding the GI Bill benefits contact Human Resources Command (HRC), Education Incentives Branch at…" b. Email messages between the applicant and an official of the HRC Finance and Incentives Branch, that span the period 16 September 2016 to 4 October 2016 pertaining to his Post-9/11 GI Bill request for TEB. The messages show: * on 16 September 2016 – * he was informed his request was disapproved because he did not request TEB before being selected under the SERB released on 7 January 2014 * he advised the official he was still on active duty with retirement NLT July 2017 * he was informed he was ineligible to transfer benefits because he was unable to fulfill the 4-year service obligation * he referenced DODI 1341.13, Enclosure 3, paragraph 3a(2), and requested the specific policy that supersedes the DoD policy * on 4 October 2016, the HRC official provided him a copy of MilPer Message Number 13-089, FY13 SERB, ACC 5. In the processing of his case, an advisory opinion was obtained from the Chief, Army Education Incentives Branch, U.S. Army HRC, Fort Knox, KY, dated 24 May 2017. a. The advisory official recommended denial of the applicant's request to transfer his Post-9/11 GI Bill educational benefits to his dependents because he did not submit a request to transfer education benefits before selection by the FY13 SERB on 7 January 2014. b. He referenced Public Law 110-252 (Supplemental Appropriations Act, 2008) that established the legal limitations on the transferability of unused Post-9/11 GI Bill benefits. He added that all benefits must be transferred before the Service Member (SM) separates or retires and the TEB service obligation must be fulfilled to maintain TEB. c. He stated the Post-9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The TEB to a dependent was included in the statute as an incentive for the express purpose of recruitment and retention (i.e., to commit to and fulfill additional service from the TEB request date). d. He also referenced MilPer Message Number 13-089, FY13 SERB, ACC, paragraph 6, that advised Soldiers if they requested TEB before their consideration by the upcoming SERB selection (approved on 7 January 2014) they would retain TEB and not incur an overpayment. Additionally, Soldiers who did not request TEB prior to the SERB selection date would be ineligible for TEB because they could not fulfill any assigned TEB service obligation if it would be after the SERB involuntary retirement date. e. As a result of the FY13 SERB, the applicant was given a mandatory retirement date of 31 July 2017. On 7 September 2016, he requested TEB. The HRC Army Education Incentives Branch verified his Post-9/11 GI Bill eligibility status, confirmed he had been selected for SERB, and rejected his application. He was notified of the decision on 16 September 2016. f. The advisory official noted that, had the applicant requested TEB prior to 7 January 2014, his TEB would have been approved with a mandatory 4-year TEB service obligation; however, the service obligation would have later been adjusted to his FY13 SERB retirement date of 31 July 2017 because he would have requested TEB and could have in good conscience committed to the TEB service obligation before being selected by the FY13 SERB. g. The advisory official provided a summary of the nine statements on the TEB website that a Soldier must agree to at the time they submit their request for TEB. Two statements specifically address the TEB service obligation, including agreeing to serve the period required and the Soldier's responsibility for any overpayment due to not completing the additional obligated term of service. He added that the Post-9/11 GI Bill TEB option was available to the applicant for nearly five years prior to the convening of his FY13 SERB. 6. On 30 May 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. 7. 22 June 2017, the applicant provided his response, along with a copy of DODI Number 1341.13. He stated he still meets all the eligibility requirements to transfer his Post-9/11 GI Bill benefits to his dependents, but has been improperly denied the TEB. He references Enclosure 3, paragraph 3, subparagraph a(2), under which he is eligible to transfer the entitlement. He states the SERB action cannot remove eligibility otherwise obtained and, therefore, he and any other SM who has been denied TEB should retain their eligibility for TEB and cannot be denied this option. He states the advisory official's rational for denial (i.e., "because he did not submit a request to transfer education benefits before selection by the FY13 SERB on 7 January 2014") adds an eligibility criteria for TEB not found in public law, DoD policy, or written Army policy. He adds the remainder of the advisory opinion is not germane to his request for administrative relief. REFERENCES: 1. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members. a. An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, does not have an adverse action flag and has completed at least: (1) 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; (2) 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD) must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred; or (3) the years of service as determined in Army regulations and established by the Secretary of the Army. b. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows: (1) to the individual's spouse; (2) to one or more of the individual's children; or (3) to a combination of the individuals identified above. c. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. 2. DODI Number 1341.13 establishes policy, assigns responsibilities, and prescribes procedures for implementing DoD authorities and responsibilities for chapter 33 of title 38, United States Code (also known and hereafter referred to as "the Post-9/11 GI Bill"). It also establishes policy for authorizing the TEB in accordance with section 3319 of the Post-9/11 GI Bill. a. Enclosure 2 (Responsibilities), paragraph 4, instructs that the Secretary concerned (i.e., the Secretary of the Military Department with jurisdiction over that Service member) will provide implementing guidance within their Department to govern the administration of the Post-9/11 GI Bill consistent with this Instruction and other guidance issued by the Deputy Assistant Secretary of Defense for Military Personnel Policy and consistent with the needs of the Military Services. This guidance must include Service implementation of kickers and the transfer of unused educational benefits as established in section 3319 of the Post-9/11 GI Bill, as outlined in Enclosure 3. b. Enclosure 3, paragraph 3, states that subject to the provisions of this enclosure, the Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. It shows in subparagraph a (Eligible Individuals), any SM 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: (1) Has at least 6 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval and agrees to serve 4 additional years in the Military Services, NOAA Corps, or PHS from the date of election. (2) Has at least 10 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS 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. (3) Is or becomes retirement eligible during the period from 1 August 2009 through 31 July 2012, and agrees to serve the additional period, if any, specified in this enclosure. A SM 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 title 10, U.S. Code. This subparagraph will no longer be in effect on 1 August 2013, and on or after that date all members must comply with subparagraphs 3a(1) or 3a(2) of this enclosure to be eligible for transfer of unused education benefits to family members. (a) For individuals eligible for retirement on 1 August 2009, no additional service is required. (b) For individuals eligible for retirement after August 1, 2009, and before August 1, 2010, 1 year of additional service is required. (c) For individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, 2 years of additional service is required. (d) For individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, 3 years of additional service is required. (4) The provisions of subparagraph 3a(3) of this enclosure will apply to SM recalled to active duty under the provisions of section 688 of title 10 of U.S. Code or members of the Individual Ready Reserve ordered to active duty under the provisions of section 12301(d) of title 10, U.S. Code only when the active duty is for a period of at least 90 days. DISCUSSION: 1. The applicant contends, in effect, that his records should be corrected to show he elected to transfer his Post-9/11 GI Bill educational benefits to his dependent(s) because Department of the Army policy imposes an additional eligibility criteria for TEB not found in public law or DoD policy. 2. The evidence of record shows the applicant attained 20 years of qualifying service for retirement purposes on 5 August 2004. 3. The Post-9/11 GI Bill TEB was implemented effective 1 August 2009. The governing DODI shows, "the Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. 4. On 4 April 2013, the Secretary of the Army authorized the use of a SERB to convene in August 2013 to consider LTCs in the ACC meeting the statutory eligibility. The MilPer message included written notice of the TEB policy. Specifically, that members who transferred benefits to dependents prior to SERB selection would retain their transfer benefit and not face recoupment if they agreed to serve until the mandatory date of separation established for them by the SERB. a. The applicant did not initiate a TEB request indicating his agreement to serve for the maximum amount of time allowed by policy or statute, if selected by the FY13 SERB. b. On 7 January 2014, the applicant was selected by the FY13 SERB with a mandatory retirement date of 31 July 2017. c. On 7 September 2016, approximately 32 months after he was selected by the FY13 SERB, the applicant requested TEB. d. Accordingly, upon confirmation of his selection by the FY13 SERB, the HRC Army Education Incentive Branch rejected his TEB request. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170004140 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170004140 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2