IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20170007418 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20170007418 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, in effect, an exception to policy to transfer educational benefits to his family member(s) under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. He also requests a personal appearance before the Board. 2. The applicant states no one told him about transferring his GI Bill benefits to his daughter. He spent 17 1/2 years in the Army National Guard (ARNG), of which 5 years was on active duty. He has a 70-percent service-connected disability rating from the Department of Veterans Affairs. He earned the GI Bill and he would like to give it to his daughter. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 30 October 2003, 2 December 2005, and 15 June 2008 * Memorandum, Subject: Request for Medical Discharge CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the New Jersey ARNG (NJARNG) on 25 June 1992 and he held military occupational specialty 44B (Metal worker). 3. He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments, including Kuwait/Iraq, and he attained the rank/grade of sergeant (SGT)/E-5. 4. He entered active duty on 18 June 2008 and subsequently served in Iraq from 1 September 2008 to 31 May 2009. He was honorably released from active duty to the control of his state ARNG on 25 August 2009. 5. He provides a signed memorandum indicating his acceptance of the findings of a medical evaluation board and his desire to be medically discharged and placed into the Retired Reserve. 6. He was honorably discharged from the ARNG and transferred to the Retired Reserve on 27 January 2010. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows: * he completed 17 years, 7 months, and 3 days of service for retired pay * the reason for his discharge was that he was found medically unfit for retention in the ARNG 7. On 2 February 2010, the NJARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (15-year Letter). 8. The Board requested and the National Guard Bureau (NGB) provided an advisory opinion on 26 January 2018 in the processing of this case. The NGB official recommended approval of the applicant’s request to transfer Post 9/11 GI Bill education benefits. The official stated: a. The applicant, a former member of the NJARNG, contends that he was not informed about the option to transfer his Post 9/11 GI Bill to his daughter prior to his discharge. A DD Form 214 in his record shows he served in support of Operation Iraqi Freedom with time in Iraq from 1 September 2008 to 31 May 2009. He demobilized, separating from his active service on 25 August 2009. Subsequently, he was placed into a medical hold status pending a medical evaluation board (MEB). A memorandum signed by the Soldier on 6 December 2009, states, "I accept the findings of the MEB and wish to be medically discharged, placed into the Retired Reserves effective as soon as possible." b. Transfer of Post 9/11 GI Bill Benefits to Dependents (TEB) was established to promote retention. DTM (Directive Type Memorandum) 09-003, dated 22 June 2009, identifies specific service obligations required for individuals that choose to use TEB. Subparagraph 3.a.(3)(b) specifies that an individual with an approved retirement date after 1 August 2009 and before 1 July 2010, would not incur a service obligation for TEB. A memorandum in the Soldier's Army Military Human Resource Records, SUBJECT: Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service (dated 2 February 2010), shows the Soldier did have an approved retirement between the dates specified above. c. The ARNG, DOD, and VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers were not fully aware of the requirement to transfer prior to leaving military service. Based on the applicant's status at the time of TEB program inception (deployment, demobilization, leave/reintegration, MEB) and the slow dissemination of information, it is reasonable that the Soldier did not receive the necessary information prior to his transfer to the Retired Reserves on 27 January 2010. Additionally, had he completed the transfer of benefits, he would not have incurred a service obligation as his date of retirement fell between 1 August 2009 and 1 July 2010. Therefore, it is the belief of this office that the applicant should be granted transfer of his benefits to his daughter. d. The NGB Education Services Branch concurs with this recommendation. Additionally, the NJARNG concurs with this recommendation 9. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. REFERENCES: 1. 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. 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 on or after 1 August 2009. b. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS). Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase which is the first 90 days of the program. The Army, DOD, and the VA initiated a public campaign plans that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits. g. A Soldier must have initially requested to transfer benefits on the DOD TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. h. Changes to the amount of months allocated to family members can be made at any time, to include once a Soldier leaves military service, provided the Soldier allocates at least 1 month of benefits prior to his or her separation. If the Soldier allocates 0 months and subsequently leaves military service, he/she is not authorized to transfer unused benefits post service. 2. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. 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 and, is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active service or 20 qualifying years of Reserve service. 3. There is a provision on the milConnect DOD TEB Web application that shows once a transfer request is submitted it continuously shows the status "Submitted" until the transfer is approved or rejected. Once a request is approved, the status will be updated to "Request Approved" and the status date will be set to the date the Service Representative approved the request. An approval form also become available once a TEB request is approved. There is an option to print the approval form so a Soldier can maintain a copy of the approval for his or her personal records. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The evidence of record and independent evidence provided by the applicant appear to be sufficient to render a fair and equitable decision at this time. A personal appearance hearing does not appear necessary to serve the interest of equity and justice in this case. 2. Public Law 110-252 establishes 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 Active Duty or Selected Reserve status, and commit to the required service obligation. All benefits must be transferred before the service member separates or retires. a. He stated no one told him about transferring his GI Bill to his daughter. The Army, DOD, and VA conducted public campaigns that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. b. The applicant was eligible to transfer his education benefits under the TEB from 1 August 2009 until his transfer to the Retired Reserve in January 2010, but there is no documentary evidence he did so. The program was implemented in July 2009, with an effective date of 1 August 2009, and he retired on 27 January 2010. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, DOD, and the VA initiated a comprehensive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. He retired on 27 January 2010, which was not within the 90-day implementation phase. 3. The NGB advisory official recommends granting the applicant’s request. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170007418 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2