ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20170010299 APPLICANT REQUESTS: * In effect, to transfer his Post 9/11 GI Bill * Personal Appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Department of Veteran’s Affairs (VA) Certificate of Eligibility * Army Review Board Agency (ARBA) 2011 Annual Report * Copy of DOD News Article * Screenshot of Mil-Connect * 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, 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: a. When he retired on 31 March 2009, he applied for and received his VA Certificate of Eligibility with an effective date of 1 August 2009. This certificate provided him with 36 months of full benefits at 100%. When he retired, he received no briefings prior to his departure stating that election to transfer benefits to family members had to be declared prior to his departure from active duty. This was because DOD hadn't published policies or procedures until June 2009, approximately 3 months after he retired. He went on to complete a Master’s of Business Administration at Michigan State University from June 2010 to March 2012 using 19 of the 36 months available. This left 17 months and 4 days of eligibility remaining. He decided to hold on to these remaining benefits for his eldest son who would be starting college in the fall of 2016. b. He spoke to several VA representatives in reference to using the Post 9/11 GI Bill to pay for his son’s private schooling, but when he logged onto the Transfer of Education Benefits page, he immediately noticed that his wife and two sons where all ineligible to receive his remaining benefits. When he spoke to VA representatives, about what he encountered, he was informed of the transfer policies, and service obligation. He was re-directed to Army officials, who informed him of the ABCMR process. His bottom-line is, there was no guidance published by DOD until the summer of 2009, well after he retired and well after he had applied for his certificate with the VA. It was never explained to him prior to retiring from active duty that this transfer of eligibility election had to be made prior to his departure. 3. The applicant provides: a. VA Certificate of Eligibility, dated 7 July 2009, which states that the applicant has 36 months and 0 days of full time benefits. He is entitled to receive 100% of the benefits payable under the Post-9/11 GI Bill program for training offered by an institution of higher education. b. ARBA 2011 Annual Report, dated October 2011. c. Copy of DOD News Article, dated 23 June 2009, which states, the Defense Department signed off on policies and procedures service members will use to transfer their unused Post 9/11 GI Bill benefits to their dependents. d. Screenshot of Mil-Connect, undated, which reflects the applicant’s dependents are ineligible to receive a transfer of education benefits. e. DD Form 214, dated 31 March 2009, which reflects he was honorably retired under the provision of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) for sufficient service for retirement. He had 21 years, 7 months and 8 days of active service. 4. A review of the applicant’s service record shows: a. He enlisted on 22 March 1984 in the Michigan Army National Guard (MIARNG). b. He was ordered to active duty on 20 June 1984. He was honorably relieved from active duty (REFRAD) training on 18 October 1989 under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for reserve component personnel upon completion of military occupational specialty (MOS) training. c. He was ordered to active duty on 9 June 1987. He was honorably REFRAD on 22 August 1987 under the provision of self-terminating orders 118-4, dated 9 June 1987, amended by 174-3, dated 24 August 1987 for completion of period of service. d. He honorably discharged on 22 August 1987 from the MIARNG under the provision of NGR 600-200 (Enlisted Personnel Management) to accept an appointment. e. He was appointed as a Michigan National Guard commissioned officer of the Army and executed an oath of office on 23 August 1987. e. He served in a variety of stateside and overseas assignments and he was promoted to colonel (COL) on 8 May 2008. f. He was ordered to active duty on 9 June 1987. He was honorably retired on 31 March 2009, under the provision of AR 600-8-24 for sufficient service for retirement. g. He honorably retired on 31 March 2009 from the MIARNG under the provision of NGR 635-100 (Separation of Officers). He had 21 years, 7 months, and 8 days of net service this period. h. He was ordered to active duty on 23 August 2009. He was honorably REFRAD on 10 May 2010, under the provision of AR 600-8-24 for completion of required active service. i. He was ordered to active duty on 11 July 2010. On 9 June 2011, he received orders stating he is REFRAD and the date following release, he reverts to retired status. He was honorably REFRAD on 19 June 2011, under the provision of AR 601-10 (Management and Mobilization of Retired Soldiers of the Army), for completion of required 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). The Post 9/11 implementation began on 1 August 2009. 6. By regulation, 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Based upon the applicant retiring during the initial phases of the program being implemented and guidance may not have reached all impacted, the Board concluded that granting a one-time exception to policy allowing him to retain his eligibility to transfer his post-9/11 GI Bill BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 the applicant filed an application and the Army approved the request to transfer his Post-9/11 GI Bill benefits to the applicant’s family member prior to retirement, provided all other program eligibility criteria are met. 2. Prior to closing the case, the Board noted the administrative note below from the analyst of record and recommended that change also be completed to more accurately reflect the applicant’s military service. 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. ADMINISTRATIVE NOTE(S): DD Form 214 ending 31 March 2009, needs to be amended with a DD Form 215, to reflect the correct item 12a (Date Entered AD This Period), as 23 August 1987, the date as reflected in item 4 (Date on ENL) of his NGB Form 22. The current date in item 12 overlaps with the previous DD Form 214 (ending 22 August 1987). 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 Post 9/11 implementation began on 1 August 2009. 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). The Post 9/11 implementation began on 1 August 2009. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. 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. b. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170010299 5 1