ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 September 2019 DOCKET NUMBER: AR20170018213 APPLICANT REQUESTS: to transfer educational benefits to his children under the transfer of educational 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) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge From Active Duty) * DA Form 31 (Request and Authority for Leave) * Directive-Type Memorandum (DTM) 09-003: Post-911 GI Bill 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 his U.S. Army official records should be corrected to reflect the transfer of his Post-9/11 GI Bill benefits to his children. 3. The applicant provides: a. A self-authored statement which states he served for 21 years in the Army. During the summer of 2009, as he was retiring, a directive was released which established as policy that Post-9/11 GI Bill benefits could be transferred to the family of servicemember’s. He asserts that he was not made of aware of the new policy and believes his record should reflect he elects to transfer his educational benefits. 4. A review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 25 October 1988. b. He had continuous honorable service from 25 October 1988 to 31 October 2009. He served in a variety of stateside or overseas assignments, including Qatar and Afghanistan, and he attained the rank/grade of master sergeant (MSG)/E-8. c. He was honorably retired on 31 October 2009. His DD Form 214 shows he completed 21 years and 6 days of active service. 5. On 16 July 2019, the Army Review Boards Agency received an advisory opinion from the U.S. Army Human Resources Command (HRC) which recommended approval of the applicant’s request to transfer Post 9/11 GI Bill education benefits to his children. The official stated: a. The applicant had at least six years of active duty, did not have a negative action flag at the time of his retirement, and would not have incurred a transfer of benefit (TEB) service obligation; therefore, had he requested TEB during the implementation phase and prior to retirement, his TEB request would have been approved. b. The applicant’s last day in the service was 31 October 2009. He was added to the Retired list on 1 November 2009 which was within the 90-day implementation phase. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. The applicant responded by stating he hopes ABCMR adopts the HRC advisory opinion in full, recognizing he met all requirements for TEB, but due to timing of his overseas out-processing, terminal leave, and subsequent retirement, he did not have the opportunity to make the TEB election. 7. Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve on or after 1 August 2009. His last day in the service was 31 October 2009. He retired on 1 November 2009 which was within the 90-day implementation phase of the Post 9/11 TEB. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the requested relief is warranted. The Board notes that the applicant retired during the implementation phase of the TEB, had met all service requirements for TEB, and would not have incurred a service obligation had he applied for TEB prior to retirement. The evidence supports correction of his record to show he applied for TEB prior to his retirement. 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 that the evidence presented was 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 he submitted an application to transfer his Post-9/11 GI Bill benefits to his children prior to his retirement and by showing his application was approved. 10/28/2019 X 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: 11. Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve on or after 1 August 2009: 2. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states and 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 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. 3. 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.