ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20170014722 APPLICANT REQUESTS: In effect, an exception to policy to transfer his educational benefits to his son under the Transfer of Education Benefits (TEB) provision of the Post- 9/11 GI Bill. 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) * Transfer of Education Benefits sheet 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 he wants his son to receive his GI Bill. When he out-processed, he did not know transferring was an option. He understands that it was an option now. He was on terminal leave, and retired on 29 August 2009. He was not given the option to sign over his GI Bill before being medically retired. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was honorably retired on 29 August 2009 due to temporary disability * Transfer of Education Benefits sheet that describes the waiver process for retirees 4. A review of the applicant’s service records shows the following: a. He enlisted in the US Army Reserves on 20 November 1990. b. He entered a period of active duty on 27 November 1990 until 28 February 1991 when he was relieved from active duty training (ADT) after completion of ADT. c. DD Form 2366 (Veteran’s Educational Assistance Act of 1984 (New GI Bill) shows in part 4 (Statement of Disenrollment) “I do not desire to participate in the New GI Bill. I understand that I WILL NOT be able to enroll at a later date.” He signed on 29 July 1993 as well as a witnessing official. d. He was honorably retired on 29 August 2009 due to temporary disability. 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. In previous cases, the Board granted relief when the Soldier had separated within 90 days of program implementation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The applicant’s contentions were carefully considered. HRC guidance provides for the granting of TEB for members who retired within 90 days of the program’s implementation. The Board agreed the applicant should be authorized to retain his transfer of educational benefits to his dependents based upon that HRC guidance. 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: 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 and the Army approved, in a timely manner, his application to transfer his unused education benefits to his eligible dependent(s), effective 1 August 2009 and provided all other program eligibility criteria were met, in accordance with the Transfer of Education Benefits provisions of the Post-9/11 GI Bill. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170014722 4 1