ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 February 2020 DOCKET NUMBER: AR20170009786 APPLICANT REQUESTS: * to transfer his education benefit Post-9/11 GI Bill (TEB) * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 2 x DA Forms 1695 (Oath of Extension of Enlistment) * 2 x DA Forms 3340-R (Request for Reenlistment or Extension in the Regular Army) * 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, U.S. Code, 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: * he respectfully would like to apply to have his GI Bill transferred to his children * during his career, he worked diligently to meet the requirements to ensure his benefits were transferred * he was consistently given bad advice/information * he extended his contract and did everything he was told and didn't receive the appropriate results * in 2013 he applied to have his benefits transferred to his children * his group retention officer denied his request stating he needed to reenlist or extend his contract by three years * when his reenlistment window opened he extended his contract to meet the time required * he attempted a second time to have his benefits transferred to be denied again * he was told by his retention officer he would incur another three years of service * the inconsistency with his retention officer was very frustrating * he extended his contract out to retirement which is 20 years * he was not selected for E7, which meant he had to retire because he reached his retention control point and could not advance any further * he is not requesting anything extra but wants what he is entitled to with the option of providing his children an education * he asked his retention officer twice in 2013 about transferring his benefits to his children * he was told to submit the correct forms * after submitting the forms, he was denied and told he did not meet the minimum time allotted to transfer his benefits unless he reenlisted or extended * he extended to meet the time required and was again denied * in April 2017, during a Vocational Rehabilitation appointment, he was informed by the counselor the information previously told to him was incorrect * he could have transferred his benefits to his children * it was explained to him because he hit his Retention Control Point, he could only extend as far as he could to the retirement of 20 years and he could not exceed past that * the counselor provided him with a number to the education branch office and advised he call to follow up on his request * he called the office several times and did not receive an answer * the last time he called, he spoke with an education retention officer, who said he could have and should have been allowed to transfer his education benefits to his children * he explained his situation and his information was looked up to validate his request * the counselor agreed along with the previous counselor that he extended his contract to meet his twenty year requirement and should have been allowed to transfer his benefits * the retention control officer he dealt with originally was incorrect for not resubmitting his paperwork for the transfer of benefits * the education retention officer could not assist him further and advised him to apply to the Board * he diligently completed all that was requested of him * out of fairness, he would like to have his case reviewed properly to see if he met the requirements to transfer his benefits 3. The applicant's service records are void of evidence he completed the forms to transfer his GI Bill to his dependents. 4. The applicant provides the following documents for the Board's consideration. a. A DA Form 1695, dated 26 June 2014 showing he extended his enlistment 11 months so he could retire from the Army. b. An undated DA Form 3340-R requesting an extension of his enlistment for retirement. c. A DA Form 1695, dated 17 September 2014 showing he extended his enlistment for 11 months so he could retire from the Army. d. A DA Form 3340-R, dated 17 September 2014 requesting an extension of his enlistment for retirement. e. A DD Form 214 showing the applicant was honorably retired from the Army on 29 February 2016 with 20 years and 1 month of service. 5. In the processing of this case, an advisory opinion was obtained on 16 December 2019, from the Chief Incentive Programs Branch, US Army Human Resources Command. The advisory official recommended disapproval of the applicant's request. The GI Bill is a benefit for the Soldier as a reward for service during a time of conflict; whereas the option to transfer education benefits is considered an incentive. The applicant had sufficient time to research the eligibility criteria for TEB. The applicant did not submit a new TEB request when he had sufficient retainability. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. The applicant was provided a copy of this advisory opinion on 16 December 2019 to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 7. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 8. See REFERENCES below for applicable regulations and policy to this case. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his extension of service to retirement and the reason for his separation. The Board considered the review and conclusions of the HRC advising official. The Board found insufficient evidence to support that the applicant requested transfer of his benefits after he had sufficient retainability to apply. Based on a preponderance of evidence, the Board determined that the denial of the applicant’s request to transfer education benefits was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Member 1 Member 2 Member 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, 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. 2. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 3. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for 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. 4. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, and: a. has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or b. has at least 10 years of service in the Armed Forces (active duty and/or service in the Selected Reserve) on the date of election, 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; or c. is or becomes retirement eligible during the period from 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. 5. DOD policy further states the Secretaries of the Military Departments will provide active duty participants 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. 6. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. ABCMR Record of Proceedings (cont) AR20170009786 4