ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20170019773 APPLICANT REQUESTS: an update to his record to allow transfer of his post 9-11 GI benefits to his son and daughter 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 (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, in effect: a. The Veterans Affairs (VA) Education benefit tab used to transfer education benefit has his daughter listed as "Ineligible". After speaking with the VA, DMDC, and Army Human Resources Command (HRC), he was told that the first step to correct the error is to submit request to have his record corrected by Army to update the DOD system which feeds the VA system that will allow the transfer of the educational benefits to his daughter. b. He did not understand that he could not transfer the benefit to his daughter or that she would be declared "Ineligible". At the time of his retirement, when completing the VA Benefits paperwork, it was his understanding that as long as they were in DEERS, he could transfer the educational benefit to or between his son and daughter. Both are in DEERS but only his son is shown as eligible for transfer in the VA education benefit portal. He discovered this error when attempting to transfer benefits recently. His intent all along was to transfer the educational benefits to his son and daughter. 2. A review of the applicant’s service record shows: a. He took the oath of office and was commission on 11 July 1983. b. He was promoted to Colonel on 1 August 2005. c. He was honorably retired from active duty on 31 July 2013. 3. On 20 March 2019, U.S. Army Human Resources Command (HRC) provided an advisory opinion. HRC recommended disapproval of the applicant's request. The advisory states: 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 Transfer of Education Benefits (TEB) website, http://milconnect.dmdc.mil. All benefits must be transferred before the Service Member separates or retires. b. Based on the subsequent paragraphs below, HRC does not recommend administrative relief for the applicant because he did not provide evidence showing he attempted to transfer education benefits to his dependents other than his son prior to leaving military service. (1) On 16 April 2013, the applicant requested the transfer of 36 months to X___ X. X___ (child), not to other dependents. His TEB request was approved on 17 April 2013, with no TEB service obligation. While the applicant was on Active Duty, two other dependents were listed as eligible in the Defense Enrollment Eligibility Reporting System (DEERS) for TEB: X___ X. X___ (spouse) and X___ X. X___ (child). If the applicant’s request for relief is granted, the last day X___ X. X___ may receive education benefits from the Department of Veterans Affairs will be 13 August 2019, the day before her 25th birthday. (2) Because the applicant did not transfer at least one month to his other two dependents before retiring, he cannot make these dependents eligible for TEB while in retired status (per 10 U.S.C. §3319(f)(1)). Provided the Soldier allocates at least one month of benefits to the respective eligible dependent prior to separation, changes to the amount of months allocated to these respective eligible dependents can be made at any time (to include once the Soldier leave military service). If the Soldier fails to transfer at least one month to a qualified dependent, the Soldier may not transfer to that dependent after leaving military service. The TEB website shows no action was taken by the applicant to transfer any benefit to his dependents other than his son. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense (DOD), and Department of Veterans Affairs (OVA) initiated a comprehensive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. This information was available to the applicant until his retirement effective 31 July 2013. His TEB request was effective 14 April 2013, which was not during the 90-day implementation phase, nor during any terminal leave status. The time to make himself aware of TEB eligibility criteria was before he submitted his retirement request. 4. The available evidence shows the applicant was fully eligible to transfer his educational benefits, under the TEB provision of the Post-9/11 GI Bill, prior to retirement; he did not apply for transfer of benefits while still on active duty. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the information and recommendation of the advisory opinion, as well as a lack of evidence showing he attempted to transfer any benefits to his other dependents prior to retiring, the Board concluded that no error or injustice was present which would warrant changing the record of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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 (Armed Forces), U.S. Code, section 1552(b) (Correction of Military Records: Claims Incident Thereto), 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-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, section 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. a. 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: * has at least 6 years of service on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or, * has at least 10 years of service (active duty and/or Selected Reserve), 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, * is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013; a service member is considered retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service b. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill; the counseling will be documented and maintained in records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. c. During the initial implementation of this program, many Soldiers in all grades were confused as to their eligibility and/or the application process. This confusion was exacerbated by the heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave during the 60 to 90 days of the program implementation. In addition, officials at some education centers may have also been confused with regard to the implementation instructions and may not have conducted proper counseling. ABCMR Record of Proceedings (cont) AR20170019773 3 1