ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 January 2020 DOCKET NUMBER: AR20170009798 APPLICANT REQUESTS: * to transfer his Post-9/11 GI Bill education benefits (TEB) * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TEB website screenshot * Approval of TEB 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 is not able to transfer his remaining GI Bill benefits to his two youngest children * one will be entering her second year of college and the other will be entering his first * during his retirement briefing, he was led to believe as along as he had transferred at least one month of his benefits to at least one of his dependents before he retired, he would be able to reallocate the remaining benefits to any of his dependents * the dependents needed to be his dependents and meet the Defense Enrollment Eligibility Reporting System (DEERS) requirements * while he was on active duty, he allocated benefits to his two oldest children * his oldest daughter did not use any of the benefits * his second child used some of his benefits * he is married and has five children * all six of his dependents are in the DEERS system * had he known of the requirement to transfer benefits to each eligible dependent before he retired he would have * he had transferred some of his benefits and was planning on transferring the remaining balance to his two youngest children * he found out he was not able to transfer his benefits the summer of 2016 when he was trying to allocate his benefits to his daughter as she was starting her freshman year of college * he went to his local Department of Veterans Affairs (VA) office and asked for help * the representative was unsure how to appeal the decision * he continued to seek information about an appeal * he called the retirement assistance office at Fort Polk and was told to contact the VA * he contacted the Army G1 and was told they could not make the change because the transfer option is owned by the Department of Defense (DOD) by law and is controlled by DOD policy * the Army G1 told him about an appeal process * he contacted his Congressman's office and asked for help * it was the Congressman's office that initially informed him of the appeal process and he started an initial appeal * he was told he needed to get his local VA representative involved in the appeal * the VA was not much help * he reached out and sought help through the Military Officers Association of America * they sent him the link to start an appeal but didn't offer any other assistance * his youngest son would be starting his freshman year the fall of 2017 * without the GI Bill benefits, his son would have to take out student loans * he needs the Board's help * he is only asking for something he feels he is entitled to and nothing more * if he had known he had to transfer the benefits before he retired he would have done so 3. The applicant's service records contain his DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was honorably retired on 31 August 2012. 4. The applicant's service records are void of documentation showing he transferred his GI Bill to his dependents. 5. The applicant provides the following documents for the Board's consideration: a. A screenshot of the TEB transfer information which shows: * his status was his request was approved * the status date was 23 July 2009 * his obligation end date was 1 August 2009 * a list of his dependents * a begin date of 24 August 2009 and an end date of 31 December 2014 for his oldest son with benefits being revoked on 2 November 2015 * a begin date of 1 August 2009 and an end date of 31 May 2010 for his oldest daughter with benefits being revoked on 8 June 2017 * the other dependents show a 0 in the months block b. A letter from DOD dated 8 June 2017, which shows: * he was approved for a transfer of benefits * the transfer request date was 24 August 2009 * the transfer status date was 23 July 2009 * his obligation end date was 1 August 2009 * there is no one listed under Dependent Name 6. In the processing of this case, an advisory opinion was obtained on 16 December 2019, from the Chief, Education Incentives Branch, US Army Human Resources Command. The advisory official recommended disapproval of the applicant's request because the applicant hadn't transferred at least one month to each dependent he wanted to receive the benefit prior to his retirement. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 7. 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 responded as follows: a. The applicant is willing to appear before the Board in person if called as well as provide a sworn and/or notarized statement if requested. His desire is for the Board to approve his request to transfer the remaining months of his GI Bill Benefits to his children. b. He hopes the Board will understand his situation and take into consideration he was misinformed at his retirement briefing. He transferred 12 months of his eligibility to two of his six dependents while he was on active duty. He transferred six months to each of the two dependents in 2009 when they were of college age. His wife had completed her degree and another son had joined the Navy and has his own GI Bill. His two youngest children were in elementary school. All six were enrolled in DEERS at the time. c. Prior to his retirement as part of his final out processing, he was required to attend various retirement briefs. He along with numerous other Soldiers who were retiring were given a number of briefings on various topics such as the Survivors Benefit Plan, Retirement Plan and Benefits, Tricare for live, and many more. d. During one briefing, he was told to be able to transfer GI Bill benefits the beneficiary had to be listed in DEERS. If he wanted to be able to transfer or make changes after retirement, he had to transfer at least one month of benefits to any dependent that was in DEERS and as long as the dependents were listed in DEERS, he could transfer and make as many changes as long as there were months of eligibility left. He was not told he had to transfer at least one month to each dependent prior to retirement. e. The Department of the Army memorandum states a Soldier should not be granted relief based on unawareness of the law, program rules or procedure. It does not state anything about being misinformed or misled. He trusted the information he was given to be accurate. Had he been given the proper information, he would have followed it. There would have been no reason for him not to put one month of eligibility into each of his dependents accounts. f. He didn't find out he couldn't transfer his benefits until the Fall of 2015, when his daughter was starting her first semester of college. He went to several Department of Veterans Affairs offices and inquired about help to make the transfer. He was told several different things and given different answers as to why they couldn't help. He was told he needed to contact the retirement services at Fort Polk, and they too told him they couldn't help and he needed to contact the Department of the Army. g. He provided the Board with the email thread with an employee at the US Army Human Resources Command. He contacted the Army G-1, a Senator, and two Congressmen seeking help. They took quite a bit of time and he was being pointed in different directions. He spent a lot of time and contacted various offices seeking a way that he could get this corrected. Every time he contacted an office he was given a different answer. He was finally pointed to the Board and submitted his application. He is still willing to make a personal appearance before the Board. h. This process has taken several years to get completed. His daughter is now in her fourth year of college and his son in his third year of college. They both had to take out student loans to cover the costs. He believes they deserve to be able to use the remaining months of education benefits in his account. He is asking for the use of a benefit that he earned. He does not think it should be denied because he trusted what he was told. He asks the Board to approve his request for the sake of his children. 8. 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. 9. See REFERENCES below for applicable regulations and policy to this case. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is warranted. The Board further found that the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board noted that the applicant requested TEB when the program was being initiated and agreed that in these early stages the requirements may not have been communicated clearly. The Board determined by a preponderance of the evidence that, had the applicant fully understood the requirements, he would have complied with those requirements. The Board determined the record should be corrected to show he assigned one month of education benefits to each of his two youngest children. BOARD VOTE: Member 1 Member 2 Member 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he elected to transfer one month of his Post-9/11 GI Bill education benefits to each of his youngest children prior to his retirement. 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) AR20170009798 5