IN THE CASE OF: . BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20170011351 APPLICANT REQUESTS: The applicant requests, in effect, an exception to policy to transfer education benefits (TEB) to his dependents. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 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 has three children (Russell, James Jr., and Alexis) and he took the effort of transferring his Post 9/11 GI Bill education benefits to all three of them. At the time he was able to transfer 12 months apiece to each one of them. His first child Russell was able to use his 12 months at Michigan State, while his youngest two were still in grade school. This past fall he sent his namesake James Jr to Central Michigan and went to activate his Post 9/11 education benefits and his name says he was ineligible as well as his daughter Alexis and his wife. When he transferred them all, he was able to print off a copy of the transfer. Since the flooding of his basement the copy was destroyed. His last duty was in recruiting command. His children and spouse qualify through all categories under the Post 9/11 eligibility. He believes the records are in error and some sort of mistake. 3. On 15 May 1990, the applicant enlisted in the Illinois Army National Guard (ILARNG) for a period of 7 years, 5 months, and 12 days. 4. His record contained a Record of Emergency Data form listing his dependents as Diva (spouse), James Jr. (son), Alexis (daughter), and Russell (son). 5. A DD Form 214 contained in his record shows: * 5 September 2019, he entered active duty this period * 31 July 2014, he was released from active duty this period and transferred to his ILARNG unit * he completed 8 years, 10 months, and 12 days of net active service this period * he had 1 year, 11 months, and 25 days of total prior active service * he had 13 years, 9 months, and 2 days of total prior inactive service * he served in Iraq 5. Orders 155-1078 issued by the ILARNG honorably discharged the applicant from the ARNG and assigned him to the United States Army Reserve Control Group (Reinforcement) effective 31 July 2014. 6. His NGB Form 22 (Nation Guard Report of Separation and Record of Service) shows: * he was honorably discharged from the ILARNG effective 31 July 2104 by reason of selective or qualitative retention action * he had 24 years, 2 months, and 16 days of net service this period * he had 4 months and 23 days of prior Reserve component service * he served on active duty from 3 February 2003 to 9 September 2004 * he served in the Active Guard Reserve from 19 September 2005 to 31 July 2014 7. Orders C-05-507840 issued by U.S. Army Human Resources Command reassigned the applicant based on non-participation to the Retired Reserve effective 29 May 2015. 8. On 30 January 2020, the National Guard Bureau, Arlington, VA provided an advisory opinion for this case. The Chief, Special Actions Branch recommended approval of the applicant’s request to transfer education benefits to his dependents. The advisor also stated: a. The applicant states that he transferred his education benefits to his three dependents (12 months to each) in 2009, but only his eldest child was able to utilize the benefits (12 months). The other dependents were shown to be ineligible when his second dependent was preparing for college. The applicant requests that his dependents be granted the remaining months of education benefits. b. Documents from the Benefits for Education Administrative Services Tool (BEAST) show the applicant never successfully transferred benefits to all of his children. Based on the BEAST screenshot, the applicant only provided his eldest child with the education benefits. In addition, the applicant also was a recipient of the Ch. 1606 GI Bill of which he used eighteen (18) months. When Soldiers utilize previous GI Bills and the Post 9/11 they are entitled to up to 48 months of education benefits. Based on both the applicant and his dependent’s use of the education benefits the applicant has (18) months of benefits remaining. The applicant does not make any allegations of not being properly counseled or any direct injustice. c. Based on the available evidence there is no outstanding injustice or wrongdoing that contributed to the applicant’s current situation. Given the timeline of the applicant’s enrollment, it is likely that he did not receive adequate counseling on how to properly transfer the education benefits to all his dependents, resulting in the ineligibility of his remaining dependents. The NGB Education Services Office did reach out around 2013- 2014 time period to inform Soldiers to ensure that they transferred at least one (1) month to their dependents prior to leaving service, but there is no guarantee that this information reached the applicant. It is highly likely that if the applicant received adequate counseling on the TEB process, he would have properly enrolled his children at the time of initial election. d. It is the recommendation of this office that the applicant receive full relief. While it cannot be determined what caused the error in the applicant’s transfer request, it is reasonable to assume that he intended to transfer benefits to all his dependents. In addition, since he only has eighteen (18) months of benefits remaining it would be in the best interest of the applicant and his family to alter his records to show a successful transfer of the remaining 18 months to his dependents. e. The National Guard Bureau Education Services Office was consulted on this recommendation and the Illinois Army National Guard concurs with this recommendation. 9. On 7 February 2020, the applicant was provided a copy of the advisory opinion to allow for comments or rebuttal. He did not respond. 10. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members. a. An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, does not have an adverse action flag and has completed at least: (1) 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; (2) 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to a 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 (3) the years of service as determined in Army regulations and established by the Secretary of the Army. b. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows: (1) to the individual's spouse; (2) to one or more of the individual's children; or (3) to a combination of the individuals identified above. c. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. 2. DODI Number 1341.13 establishes policy, assigns responsibilities, and prescribes procedures for implementing DoD authorities and responsibilities for chapter 33 of title 38, United States Code (also known and hereafter referred to as "the Post-9/11 GI Bill"). It also establishes policy for authorizing the TEB in accordance with section 3319 of the Post-9/11 GI Bill. a. Enclosure 2 (Responsibilities), paragraph 4, instructs that the Secretary concerned (i.e., the Secretary of the Military Department with jurisdiction over that Service member) will provide implementing guidance within their Department to govern the administration of the Post-9/11 GI Bill consistent with this Instruction and other guidance issued by the Deputy Assistant Secretary of Defense for Military Personnel Policy and consistent with the needs of the Military Services. This guidance must include Service implementation of kickers and the transfer of unused educational benefits as established in section 3319 of the Post-9/11 GI Bill, as outlined in Enclosure 3. b. Enclosure 3, paragraph 3, states that subject to the provisions of this enclosure, the Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. It shows in subparagraph a (Eligible Individuals), any SM on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she meets one of these conditions: (1) Has at least 6 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval and agrees to serve 4 additional years in the Military Services, NOAA Corps, or PHS from the date of election. (2) Has at least 10 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval, 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. (3) Is or becomes retirement eligible during the period from 1 August 2009 through 31 July 2012, and agrees to serve the additional period, if any, specified in this enclosure. A SM is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed pursuant to section 12732 of title 10, U.S. Code. This subparagraph will no longer be in effect on 1 August 2013, and on or after that date all members must comply with subparagraphs 3a(1) or 3a(2) of this enclosure to be eligible for transfer of unused education benefits to family members. (a) For individuals eligible for retirement on 1 August 2009, no additional service is required. (b) For individuals eligible for retirement after August 1, 2009, and before August 1, 2010, 1 year of additional service is required. (c) For individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, 2 years of additional service is required. (d) For individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, 3 years of additional service is required. (4) The provisions of subparagraph 3a(3) of this enclosure will apply to SM recalled to active duty under the provisions of section 688 of title 10 of U.S. Code or members of the Individual Ready Reserve ordered to active duty under the provisions of section 12301(d) of title 10, U.S. Code only when the active duty is for a period of at least 90 days. 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, a transfer of education benefits to one of his dependents, his discharge from the ARNG and his transfer to the retired reserve. The Board considered the review and conclusions of the National Guard Bureau advising official and concurred with the recommendation. Based on a preponderance of evidence, the Board determined that an amendment to the applicant’s record was necessary to correct 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 : : : 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 reflect: - the applicant requested transfer of at least one month of his education benefits to each of his dependents in September 2009; - his request was accepted and processed by the appropriate authority, and; - the applicant is eligible to transfer remaining education benefits to his eligible dependents. 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 Army Board for Correction of Military Records (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 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members. a. An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, does not have an adverse action flag and has completed at least: (1) 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; (2) 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to a 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 (3) the years of service as determined in Army regulations and established by the Secretary of the Army. b. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows: (1) to the individual's spouse; (2) to one or more of the individual's children; or (3) to a combination of the individuals identified above. c. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. 3. DODI Number 1341.13 establishes policy, assigns responsibilities, and prescribes procedures for implementing DoD authorities and responsibilities for chapter 33 of title 38, United States Code (also known and hereafter referred to as "the Post-9/11 GI Bill"). It also establishes policy for authorizing the TEB in accordance with section 3319 of the Post-9/11 GI Bill. a. Enclosure 2 (Responsibilities), paragraph 4, instructs that the Secretary concerned (i.e., the Secretary of the Military Department with jurisdiction over that Service member) will provide implementing guidance within their Department to govern the administration of the Post-9/11 GI Bill consistent with this Instruction and other guidance issued by the Deputy Assistant Secretary of Defense for Military Personnel Policy and consistent with the needs of the Military Services. This guidance must include Service implementation of kickers and the transfer of unused educational benefits as established in section 3319 of the Post-9/11 GI Bill, as outlined in Enclosure 3. b. Enclosure 3, paragraph 3, states that subject to the provisions of this enclosure, the Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. It shows in subparagraph a (Eligible Individuals), any SM on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she meets one of these conditions: (1) Has at least 6 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval and agrees to serve 4 additional years in the Military Services, NOAA Corps, or PHS from the date of election. (2) Has at least 10 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval, 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. (3) Is or becomes retirement eligible during the period from 1 August 2009 through 31 July 2012, and agrees to serve the additional period, if any, specified in this enclosure. A SM is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed pursuant to section 12732 of title 10, U.S. Code. This subparagraph will no longer be in effect on 1 August 2013, and on or after that date all members must comply with subparagraphs 3a(1) or 3a(2) of this enclosure to be eligible for transfer of unused education benefits to family members. (a) For individuals eligible for retirement on 1 August 2009, no additional service is required. (b) For individuals eligible for retirement after August 1, 2009, and before August 1, 2010, 1 year of additional service is required. (c) For individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, 2 years of additional service is required. (d) For individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, 3 years of additional service is required. (4) The provisions of subparagraph 3a(3) of this enclosure will apply to SM recalled to active duty under the provisions of section 688 of title 10 of U.S. Code or members of the Individual Ready Reserve ordered to active duty under the provisions of section 12301(d) of title 10, U.S. Code only when the active duty is for a period of at least 90 days. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011351 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170011351 8 ABCMR Record of Proceedings (cont) AR20170011351 7