ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 October 2019 DOCKET NUMBER: AR20170006813 APPLICANT REQUESTS: In effect, an exception to policy to transfer his educational benefits to his children 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) * Letter from Department of Veterans Affairs (DVA) 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 upon retiring from the Army he was not offered and/or was aware of his GI Bill not being transferred to his children. He thought it was taken care of but now was told he had to give it to his kids while he was on active duty. Please consider this error due to the fact that he retired in 2009 when this change came about and he was not informed of this requirement. If he was aware of this matter he would have definitely taken care of it before he out processed. 3. The applicant provides a letter from DVA, dated 31 January 2017 that states his application was received. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 28 November 1989. b. He served in Bosnia from 23 September 1996 until 27 November 1997and Iraq from 12 April 2003 until 11 April 2004. c. There is no evidence that the applicant transferred his Post 9/11 education benefits to his family members before he retired. d. He was honorably retired on 30 November 2009. He completed 20 years and 3 days of active service. 5. Public Law 110-252 established 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 an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. 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 educational benefits to a dependent is considered an incentive, not an entitlement. The transferability 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one- on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post-9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the VA using a VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least 1 month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation (if applicable). c. The Soldier must acknowledge and click on nine statements in the TEB website before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. d. In previous cases, the Board granted relief when the Soldier had separated within 90 days of program implementation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. Evidence of record shows he separated outside the 90 day window of public law’s implementation of the benefit. Without taking into effect the alleged lack of notification to transfer education benefits prior to his retirement, the applicant is advised the requirement is embedded in public law. There is no evidence that shows he attempted to transfer education benefits and that the transfer was not processed and approved in a timely manner, which would enable the Board to possibly correct the record to show the request was accepted and approved timely. Without such evidence, the Board must adhere to this law. 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 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. 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 an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. 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 educational benefits to a dependent is considered an incentive, not an entitlement. The transferability 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one- on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post-9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the VA using a VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least 1 month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation (if applicable). c. The Soldier must acknowledge and click on nine statements in the TEB website before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006813 4 1