ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 November 2019 DOCKET NUMBER: AR20170017786 APPLICANT REQUESTS: transfer of Post 9/11 GI Bill benefits 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) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * request for retirement * self-authored letter to Board 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 in effect, that at the time he elected to retire he was unaware of the opportunity to transfer his Post 9/11 GI Bill education benefits to his dependents. Had he been aware of this opportunity he would have elected to transfer the benefits and if necessary stayed on active duty to meet all service obligations. He has been unable to transfer the education benefit in milConnect as he is no longer in the service. He contacted the education office in his state to request an exception to policy, but to no avail and he is not familiar with the process to request such an exception. He has exhausted all coursed of action at his disposal. He is requesting a review of his case and be allowed to transfer his Post 9/11 GI Bill education benefits to his dependents. 3. A review of the applicant’s service record shows: a. His records are void of his original enlistment contract. His DD Form 214 shows he was ordered to active duty for training on 21 August 1981. He was released from active duty on 8 December 1981 with an honorable characterization of service. His DD Form 214 shows that he completed 3 months and 18 days of active service. b. He was discharged from the Army National Guard (ARNG) on 21 July 1984 with an honorable characterization of service to accept an appointment as a commissioned officer. His NGB Form 22 shows he completed 3 years, 6 months, and 3 days of service. c. He was appointed as a reserve commissioned officer on 22 July 1984 in the rank of second lieutenant (2LT). d. He was appointed as a reserve commissioned officer on 13 October 1984 in the rank of 2LT. e. His DD Form 214 shows that he was ordered to active duty of training on 20 January 1986. He was released from active duty on 10 June 1986 with an honorable characterization of service. His DD Form 214 shows that he completed 4 months and 21 days of active service. f. His DD Form 214 shows that he was ordered to active duty for training on 24 February 1988. He was released from active duty on 15 July 1988 with an honorable characterization of service. His DD Form 214 shows that he completed 4 months and 22 days of active service. g. His DD Form 214 shows that he was ordered to active duty on 1 November 1990 in the ARNG of the United States. He was released from active duty on 30 September 2010 with an honorable characterization of service and assigned to the United States Army Reserve (USAR) Control Group (Retired Reserve). His DD Form 214 shows that he completed 19 years and 11 months of active service. His NGB Form 22 shows he completed 29 years, 8 months, and 12 days of service. h. He was placed on the retired list on 1 October 2010 in the rank of colonel (COL). 4. In an advisory opinion, dated 26 April 2019, an official from the National Guard Bureau (NGB) recommended approval of the applicant's request. a. It is the recommendation of the NGB that the applicant be granted full relief and be authorized to transfer the remainder of his Post 9/11 GI Bill education benefits to his dependents. b. In 2011 Public Law 111-337 allowed Title 32 Active Guard and Reserve Soldier to be eligible for the Post 9/11 GI Bill as well as the transfer of education benefits (TEB). Congress backdated this law to 1 August 2009 the effective date of the policy. The amended law granted the applicant the opportunity to enroll in the post 9/11 GI Bill and TEB to his dependents. 5. By 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Based upon the information outlined within the NGB advisory concerning the amended law related to the transfer of educational benefits, the Board concluded that granting the requested relief was appropriate. 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 an application and the Army approved the request to transfer his Post-9/11 GI Bill benefits to the applicant’s family member prior to retirement, provided all other program eligibility criteria are met. 2/10/2020 X CHAIRPERSON Signed by: 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 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. 3. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. An eligible individual is 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: 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. 4. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the reserve components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. NOTHING FOLLOWS