ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 16 September 2019 DOCKET NUMBER: AR20170009335 APPLICANT REQUESTS: via counsel, reconsideration of his previous request for an exception to policy to transfer educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his beneficiaries. APPLICANT'S/COUNSEL’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel legal brief * US District Court for the Eastern District of , Thompson v United States * Directive Type Memorandum (DTM) 09 003 Post 9/11 GI Bill) * Multiple similar Air Force and Army Board for Correction of Military Records cases FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR150010538, on 7 April 2016. 2. Counsel states/contends that the Department of Defense (DOD) (and Department of the Army (DA)) failed its statutory duty to notify the applicant that he was required to make his election to transfer while on active duty or while a member of the Selected Reserve. He further contends that fundamental fairness required the military to “notice” members of the requirement to elect while on active duty or while serving as a member of the Selected Reserve. Equity then, required the ABCMR to grant his application. Loss of important rights, such as the ability to transfer up to 3 years of education benefits to one’s dependents should be clearly and explicitly described and explained to all eligible members. Counsel then goes over the previous denial and contends that his new argument is new evidence that warrants the Board to relook the case. He further goes over pertinent statutes, regulations, controlling rules, and/or documentations. He then elaborates in detail about the points of contention raised in this legal brief. 3. Counsel provides: a. Previously-available June 2009 DOD DTM 09-003 with subsequent changes, together with other documentation and/or information papers related to the Post 9/11 Transfer of Benefits. b. Multiple similar cases from the Air Force Board for Correction of Military Records and/or Army Board for Correction of Military Records. c. Extract from a civilian law suit/decision (Thompson vs United States) (United States District Court of , Eastern District) wherein a retired service member appealed a decision by the ABCMR to deny his request to transfer his Post 9/11 GI Bill benefits to his eligible family members. The court ordered that the Army failed to provide plaintiff the required pre separation counseling and thus the decision to deny his application to correct his record meets the arbitrary and capricious or contrary to law. 4. Review of the applicant’s service records shows: a. The applicant was appointed as a commissioned officer of the Ohio Army National Guard (OHARNG) on 4 September 1986. b. He served in a variety of assignments, including Panama and Kosovo, and he was advanced to lieutenant colonel (LTC) in October 2006. c. He was honorably separated from the OHARNG on 24 October 2006 and transferred to the U.S. Army Reserve (USAR) Control Group. d. He was ordered to active duty on 10 November 2008 as a member of the USAR in support of contingency operations. He was assigned to U.S. Army Element, Legal Service Fort Belvoir. e. He was released from active duty to the control of the USAR Control Group (Reinforcement) on 30 May 2012. f. He was transferred to the Retired Reserve on 1 June 2012 after having reached maximum age. g. There is no indication he applied for a transfer of his education benefits to his family members while on active duty and/or the Selected Reserve. 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. The Post 9/11 implementation began on 1 August 2009. The applicant had nearly 3 years prior to his transfer to the Retired Reserve date to research the eligibility criteria for the TEB incentive. e. The applicant could have obtained the TEB eligibility criteria through the DOD Directive-Type Memorandum 09-003, dated 22 June 2009, paragraph 3a(3)(c); the Department of the Army Post-911 GI Bill Policy Memorandum, paragraph 17a(4)(c); DOD, Department of the Army, and U.S. Army Human Resources Command websites; and various briefings at the installation level. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief is not warranted. The applicant’s counsel contentions were carefully considered. 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. In addition, the applicant acknowledged he partially used some of the Post 9/11 GI Bill prior to his retirement; the Board found this information does not support the alleged lack of knowledge of the program. 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. Similar cases were mentioned in reference to previous grants to correct records to show applicants transferred education benefits prior to their separation. Each case is considered on its own individual merit. The Board agreed there is insufficient evidence to amend the previous Board’s decision. 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 to amend the decision of the ABCMR set forth in Docket Number AR150010538, on 7 April 2016. 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. 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 on active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the TEB website. All benefits must be transferred before the service member separates or retires. 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 serving on active duty or as 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 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 Defense Enrollment Eligibility 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 the date of transfer. 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 DOD, VA, and DA 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 number 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 separation. If the Soldier allocates 0 months and subsequently leaves military service, the Soldier is not authorized to transfer unused benefits Post-service. 2. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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, in pertinent part, 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. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110- 252, section 3316. 4. DOD Instruction Number 1341.13 (Post-9/11 GI Bill) establishes policy and assigns responsibilities for the implementation of chapter 33, Title 38, U.S. Code (also known as the Post-9/11 GI Bill). Any service member 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: a. has at least 6 years of service in the Military Services (active duty or Selected Reserve), on the date of approval and agrees to serve 4 additional years in the Military Services, from the date of election. b. has at least 10 years of service in military services (active duty or Selected Reserve), 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. c. is or becomes retirement eligible during the period 1 August 2009 through 31 July 2012, and agrees to serve the additional period, if any, specified in this DOD Instruction. A Service member 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 U.S. Code. * for individuals eligible for retirement on 1 August 2009, no additional service is required * for individuals eligible for retirement after 1 August 2009, and before 1 August 2010, 1 year of additional service is required * for individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, 2 years of additional service is required * for individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, 3 years of additional service is required 5. Title 38, U.S. Code, section 3319 (Authority to Transfer Unused Education Benefits to Family Members), provides that individuals failing to complete the service agreement and whose eligible family members use the benefit as of the date of such failure shall be treated as overpayment of educational assistance and will, in turn, be responsible for reimbursing the government. The exceptions defined in the law include an individual who dies before completing the service agreement or has a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the performance of duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170009335 4 1