IN THE CASE OF:  

		BOARD DATE:  24 February 2020

		DOCKET NUMBER:  AR20170015870


APPLICANT REQUESTS:  Correction of his record to show he transferred his Post-9/11
GI Bill education benefits to his dependent, and a personal appearance before the 
Board.

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 transferred his Post-9/11 GI Bill education benefits to his son 
in 2009; however, it did not transfer and he wants the record to be corrected.  When he 
was told the transfer must be done, he and his wife transferred all GI Bill education 
benefits to their children.  They would like their son to receive his benefits.

3.  The applicant was retired effective 31 August 2011.

4.  The applicant's records is void of and the applicant does not provide any evidence
showing he transferred his Post-9/11 educational benefits to his dependents while on
active duty.
5.  On 13 December 2019, ABCMR obtained an advisory opinion from the Chief, 
Education Incentives Branch, U.S. Army Human Resources Command (AHRC) who 
recommended disapproval of the applicant's request.  The advisory opinion stated, in 
part:
     a.  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 Transfer of Education (TEB) website, 
http://milconnect.dmdc.mil.  All benefits must be transferred before the Service Member 
separates or retires.
     b.  The Post-9/11 GI Bill is a benefit for the Soldier as a reward for service during a 
time of conflict; however, the option to transfer this education benefit to eligible 
dependents is a retention incentive.  The transfer 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.  Therefore, the incentive requires the Soldier to commit and 
fulfill additional service, in most cases, from the TEB request date.
     c.  Soldiers receive counseling on all GI Bills, including the Post 9/11 GI Bill benefit 
and the TEB incentive at various venues throughout the Soldier's career 
(in/out­processing at Education Centers, Commander's Calls), upon demobilization or 
release from active duty (REFRAD), and during the last year before separation or 
retirement (Soldier for Life (SFL)-Transition Assistance Processing (TAP)).  Soldiers 
have had access to and received counseling on GI Bill benefits through SFL-TAP (e.g., 
ACAP XXI or TAP XXI) since 2002 on-line and in-person.

     d.  The TEB incentive does not require a formal one-on-one counseling, group
counseling, nor a reduction in pay to make oneself eligible.  A Soldier acquires TEB
eligibility as stated above and makes dependents eligible by awarding at least one 
month to the dependent via the TEB website and fulfilling the TEB service obligation.

     e.  The applicant could have obtained the TEB eligibility criteria through the
Department of Defense Directive-Type Memorandum 09-003 (dated 22 June 2009),
Attachment 2, paragraph 3a(3), the Department of the Army Post 911 GI Bill Policy
Memorandum (dated 10 July 2009), paragraph 17a(4), DoD, DA, and HRC websites,
various briefings at the installation level, and briefings through SFL-TAP.  He could have
used the Department of Defense and Department of the Army resources available to
him.

     f.  All of the TEB information available included the requirement to transfer while
either in Active Duty or Selected Reserve status, and the possible requirement to serve
an additional service obligation. Specifically, the DA Post 9/11 GI Bill Policy
Memorandum, paragraph 17 (second sentence) stated, "For the purposes of
transferability, Armed Forces include all active duty service and all Selected Reserve
service regardless of branch of service or component." (Please note only certain
sections of Active Duty qualify under title 10).  Also, paragraph 17g(1) stated, 'Time for
Transfer.  A Soldier approved to transfer entitlement to educational assistance under
this section may transfer such entitlement only while serving as a member of the Armed
Forces when the transfer is executed."

     g.  In his correspondence, the applicant stated he requested TEB and did not check 
the TEB website for confirmation before retirement.  The TEB website shows the 
applicant did not submit a TEB request after it became available on 1 August 2009 or 
the two years after, prior to his retirement on 31 August 2011.  Again, TEB is a retention 
incentive, not a Soldier's entitled benefit.

     h.  In April 2011, ABCMR and the Department of the Army G-1/Directorate of
Military Personnel Management/Enlisted Professional Development Branch (Post 9/11
GI Bill policy proponent) agreed that any Soldier who retired after 1 August 2009 
through the next 90 days or was on terminal leave during the first 90 days and 
subsequently retired may not have received sufficient information during this timeframe 
to submit a TEB request.  This timeframe is referred to as the "TEB 90-day 
implementation phase."  Any Soldier retiring within this timeframe would have to submit 
a request for relief through the ABCMR.  Any Soldier retiring after this timeframe is 
considered as having sufficient time to have had access to TEB incentive information.  
The applicant retired effective 31 August 2011, which was not within this TEB 90-day 
implementation phase; therefore, he is considered as having sufficient time to have 
researched the TEB incentive.    
   
6.  On 10 January 2020, the applicant was provided a copy of the advisory opinion for
rebuttal or comment.  The applicant did not respond.

7.  Public Law 110-252 establishes legal limitations on the transferability of unused
Post-9/11 GI Bill benefits.  Further, Public Law 110-252, section 3020, 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.

8.  Department of Defense (DOD) established the criteria for eligibility and transfer of
unused education benefits to eligible family members.  Eligible individuals include 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.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, and regulatory requirements.  The Board noted the facts above 
and that there was no evidence that the applicant requested transfer of his Post-9/11 
educational benefits to his dependents while on active duty.  The Board also noted the 
advisory opinion cited in paragraph 5 above.  Based on a preponderance of evidence, 
the Board determined that there was no error or injustice in the applicant’s Post-9/11 
educational benefits and that relief is not warranted.

2.  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 required to serve the 
interest of equity and justice in this case.

?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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, United States Code, 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 Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Public Law 110-252 establishes legal limitations on the transferability of unused 
Post-9/11 GI Bill benefits.  Further, Public Law 110-252, section 3020, 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.  Although significant measures 
were taken to disseminate the information to all Soldiers within all Army components 
during the initial phase of the program, many Soldiers who left the service during the 
first 90 days of the program were not fully aware of the requirement to transfer benefits 
prior to leaving military service.  A Soldier must currently be on active duty or a member 
of the Selected Reserve at the time of transfer of educational benefits to his or her 
dependent on or after 1 August 2009.  

3.  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 eligible individuals include 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)	 AR20170015870


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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