IN THE CASE OF:  

		BOARD DATE:  3 January 2020

		DOCKET NUMBER:  AR20170015314


APPLICANT REQUESTS:  an exception to policy (ETP) to transfer educational benefits 
(TEB) to his children under the 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).

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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 was never briefed that he had to transfer his education 
benefits to his children before he retired.  At the time of retirement, he suffered from 
severe traumatic brain injury (TBI).  He states if he was briefed, he would not have 
remembered.  He is 100% disabled and cannot afford his daughters education. 

3.  A review of the applicant’s service records shows:

	a.  Having had prior enlisted service, he entered active duty as a U.S. Army Reserve 
warrant officer on 28 January 2003.  He served in a variety of assignment and attained 
the rank of Chief Warrant Officer 2 (CW2).

	b.  He was honorably retired on 31 August 2009 and placed on the retired list in his.  
retired grade of CW2 on 1 September 2009.  His DD Form 214 (Certificate of Release 
or Discharge from Active Duty) shows he completed 6 years, 7 months, and 3 days of 
Active Service during this period. 

4.  Army Regulation 15-185 states 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.

5.  The law (Public Law 110-252) establishes legal limitations on the transferability of 
unused Post 9/11 GI Bill benefits.  Further, § 3020 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 six years in Active Duty or Selected Reserve status and no current negative action 
flag, commit to the service obligation, and transfer benefits to the dependents through 
the Department of Defense's (DOD) Transfer of Education (TEB) website.  All benefits 
must be transferred before the Service Member separates or retires. 

6.  The Department of the Army G-1 and the Director of the ABCMR agreed that 
Soldiers who left service during the 90-day implementation phase were not fully aware 
of the requirement to transfer prior to leaving military service.  In previous cases, the 
ABCMR granted relief based upon the terminal leave or retirement date within the 90-
day implementation phase.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
relief was warranted.  The Board found that there was sufficient evidence to show he 
retired on 31 August 2009, within 90 days of the implementation of the program 
authorizing transfer of Post-9/11 GI Bill benefits.  Based on the age of the children, they 
were qualified to receive his educational benefits under provision of the Post-9/11 GI Bill 
had he allocated at least 1 month of education benefits during the enrollment process.  

2.  Additionally, during the initial implementation of this new program, many Soldiers in 
all grades were confused regarding their eligibility and/or the procedure to apply for 
benefits.  This confusion was exacerbated by the applicant’s documented TBI.  
Therefore, the Board determined that relief was warranted in this case. 

3.  The applicant's request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision.  As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.









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 
his application and the Army approved his request to transfer Post-9/11 GI Bill benefits 
to his children, a minimum of 1 month each, prior to his retirement.


		  
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.  Army Regulation 15-185 (Army Board for Correction of Military Records) (ABCMR) 
prescribes the policies and procedures for correction of military records by the Secretary 
of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity.  

	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.

3.  Public Law 110-252, as amended by Public Law 111-377, established the legal 
requirements on the transferability of unused Post 9/11 GI Bill benefits.  This law limited 
the transfer to those members who are serving on active duty or as a member of the 
Selected Reserve on or after 1 August 2009.  Additionally, the service member must 
have performed duties on or after 11 September 2001.

	a.  A Soldier may only transfer to eligible family members.  To be considered an 
eligible family member the spouse or child must be enrolled in the Dependent Eligibility 
Enrollment Reporting System (DEERS).  Children lose eligible family member status 
upon turning age 21 or at marriage.  Eligible family member status can be extended 
from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried 
(verified by DEERS).  Wards of State are not eligible for the benefits.  Once the benefits 
are transferred, children may use the benefits up to age 26.  

	b.  Changes to the amount of months allocated to family members can be made at 
any time, to include once a Soldier leaves military service, provided the Soldier 
allocates at least 1 month of benefits prior to his or her separation.  If the Soldier 
allocates 0 months and subsequently leaves military service, he/she is not authorized to 
transfer unused benefits post service.  

4.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy 
which identified and established responsibilities, eligibility criteria, benefits, and detailed 
guidance on the administration of the program.  The policy states, in part, that those 
who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-
9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will 
transfer to the Retired List on 1 August 2009.  However, the policy does apply to those 
so retired if they are recalled to active duty and serve on or after 1 August 2009 and 
before 2 August 2012.

5.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility 
and transfer of unused educational benefits to eligible family members.  The policy 
states any member of the Armed Forces on or after 1 August 2009 who, at the time of 
the approval of the individual's request to transfer entitlement to educational assistance 
under this section, is eligible for the Post-9/11 GI Bill and:

	a.  has at least 6 years of service in the Armed Forces on the date of election and 
agrees to serve 4 additional years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected 
Reserve) on the date of election, 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, or

	c.  is or becomes retirement eligible during the period from 1 August 2009 through 1 
August 2013.  A service member is considered to be retirement eligible if he or she has 
completed 20 years of active duty or 20 qualifying years of Reserve service.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20170015314


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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