ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 December 2019 DOCKET NUMBER: AR20170011257 APPLICANT REQUESTS: * Post 9/11 Government Issue (GI) Bill * Waiver of enlistment obligation to transfer his Education Benefits to his dependents APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veteran’s Affairs (VA) Form 21-0958 (Notice of Disagreement) 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, when he applied for his Montgomery GI Bill, he was told that he qualified for both the GI Bill and the Post 9/11 GI Bill. He was told there was more money with the GI Bill, so he elected to receive the Montgomery GI Bill. He was never told the difference between the two and how benefits could be passed down to dependents. 3. The applicant provides VA Form 21-0958 Notice of Disagreement (Page 3), undated. 4. A review of the applicant’s service record shows: a. He enlisted on 13 October 1987 in the Regular Army (RA). b. On 10 April 1992, he was honorably released from active duty (REFRAD) to the USAR under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for expiration terms of service (ETS). He served 4 years, 5 months and 28 days this period. c. On 17 September 2004, he was honorably discharged from the United States Army Reserve (USAR) under the provision of AR 135-178 (Enlisted Administrative Separations) 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 DA Post-911 GI Bill Policy Memorandum, paragraph 17a(4)(c); DOD, DA, and HRC websites; and various briefings at the installation level. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Based upon the previous election of the applicant and Public Law prohibiting the transfer of educational benefits from the Montgomery GI Bill to dependents, the Board concluded that there was insufficient evidence of an error or injustice which would warrant a correction to the record. 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 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, 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). NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170011257 3 1