IN THE CASE OF: BOARD DATE: 20 March 2020 DOCKET NUMBER: AR20170011038 APPLICANT REQUESTS: Correction of his record to show Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his dependents. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 in pertinent part, to the best of his recollection and with the limited records that he has, here are the facts that he recalls. He retired on 1 September 2009, had his final out-processing on 11 June 2009, he began terminal leave on 12 June 2009. He has just recently discovered that despite being fully eligible to transfer his benefits with no additional service required, he did not know that it was a possibility prior to his retirement, let alone that it had to be done while still on active duty. He did not receive any counseling concerning his rights under the Post 9/11 GI Bill prior to his retirement, in fact, he began using this entitlement himself on 20 January 2015 as he did not think that transferring it was an option. On or about 1 May 2017 he learned that this injustice might be able to be corrected with the submission of this application for correction of military records. 3. A review of the applicant’s official records show the following on: a. On 27 May 1989, the applicant was appointed as a Reserve commissioned officer and executed an oath of office. He reported for active duty on 14 August 1989. He served continuously until his retirement. b. On 31 August 2009, the applicant was honorably retired from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years and 20 days of net active service. 4. On 20 February 2020, the U.S. Army Human Resources Command reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Education Incentives Branch opined that: a. Administrative relief was based on the following: the applicant had at least six years of active duty, did not have a negative action flag at the time of his retirement, and would not have incurred a TEB service obligation; therefore, had he requested TEB during the implementation phase and prior to retirement, his TEB request would have been approved. b. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the 90-day implementation phase. The U.S. Army, Department of Defense (DOD), and Department of Veterans Affairs 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 TEB. c. The applicant’s last day in the service was 31 August 2009, which was within the 90-day implementation phase. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 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. Eligibility includes: (1) Any Soldier of the Armed Forces who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier’s request to transfer entitlement to educational assistance does not have an adverse action flag, is eligible for the Post 9/11 GI Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to an Retention Control Point (RCP) or Mandatory Retirement Date (MRD) must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred, or (4) Is or will become retirement eligible during the period from 1 August 2009, through 1 August 2013 and agrees to serve the additional period, if any, specified below. For the purposes of this paragraph, a Soldier is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under title 10 U.S.C § 12732. a. Soldiers eligible for retirement on or before 1 August 2009, no additional service is required. 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 and the date of his retirement. The Board considered the review and conclusions of the HRC advising official and noted that the applicant had no required remaining service obligation to be eligible to transfer his benefits. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s record was necessary to remedy an injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX 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 to show: - The applicant submitted a request to transfer one month of his Post-9/11 GI Bill education benefits to each of his eligible dependents prior to his retirement on 31 August 2009; - His request was accepted and processed by the appropriate authority, and; - His dependents are eligible to receive his education benefits in accordance with his allocation decisions. 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 USC, 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 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. 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. Eligibility includes: (1) Any Soldier of the Armed Forces who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier’s request to transfer entitlement to educational assistance does not have an adverse action flag, is eligible for the Post 9/11 GI Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to an Retention Control Point (RCP) or Mandatory Retirement Date (MRD) must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred, or (4) Is or will become retirement eligible during the period from 1 August 2009, through 1 August 2013 and agrees to serve the additional period, if any, specified below. For the purposes of this paragraph, a Soldier is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under title 10 U.S.C § 12732. Use which ever computation establishes 20 years regardless of which component the Soldier is in at the time of electing to transfer benefits. a. Soldiers eligible for retirement on or before 1 August 2009, no additional service is required. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011038 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1