ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 December 2019 DOCKET NUMBER: AR20180000763 APPLICANT REQUESTS: * correction of his record to show Transfer of Educational Benefits (TEB) under his Post 9/11 GI Bill to his dependents * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement, dated 16 October 2017 * TEB approval letter, dated 21 May 2010 * Department of Defense Manpower Center (DMDC) letter, dated 2 September 2016 * DMDC website screenshot, dated 6 April 2017 * email correspondence 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 essentially: * as part of his retirement he wanted to ensure his TEB was approved prior to his retirement * he submitted his retirement request sometime between September/October 2009 and was notified in January 2010 his request was approved with a retirement date of 31 July 2010 * on 26 April 2010, he inquired about transferring the unused portion of his Post 9/11 GI Bill benefit to his dependents, an education counselor told him since his retirement orders were approved in January 2010 and he was retiring on 31 July 2010 and he would not have a service obligation * he accepted the explanation of benefits as it was provided to him by an Army approved and trained education counselor * on 18 May 2010, he received an approval letter from the DMDC informing him his request had been approved, and he confirmed he could transfer his benefits with an education counselor who was supposed to be a subject matter expert * the education counselor informed him the letter did not have a required service obligation date stated, therefore none was required * the letter was reviewed again by the retirement transition team who informed him his benefits were approved and no additional service obligation was required * at no time during his retirement transition was he informed by an education counselor or transition team employee he was subject to an additional service obligation to fulfill the transfer request * on 2 September 2016, he visited the Military Connect website and requested a change to the number of months for each of his sons and again received a letter from DMDC informing him he was approved and noticed the letter had an obligation dated of 26 April 2011 * had he received the same letter on 18 May 2010 that he received on 2 September 2016, he would have inquired as to its meaning * the second letter was dated 6 years after he had retired and he did not inquire as to the meaning of the obligation date as he was assured he was approved * Department of Defense should have verified prior to sending the second letter in September that any service obligations were met * On 6 April 2017, as part of his eldest sons college admission process he was informed he needed a certificate of eligibility and requested it in May 2017, and approximately 75 days later was informed by the U.S. Army Human Resource Command (HRC) his request was denied for not fulfilling the service obligation 3. A review of the applicant’s service records show the following on: * 31 July 1990 – enlisted in the Regular Army and served through multiple reenlistments * 31 July 2010 – honorably released from active duty by reason of sufficient service for retirement; DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years of net active service 4. The applicant provides: a. TEB approval letter showing the transfer request date as 26 April 2010, in an approved status, effective 18 May 2010 with no obligation end date listed. b. DMDC letter showing the same transfer request date and transfer status date previously mentioned in the record of proceedings with the addition of an obligation end date of 26 April 2011. c. DMDC screenshot showing an obligation end date of 26 April 2011. d. Email correspondence between the applicant and an HRC official on 20 July 2017 states in pertinent part, his request to transfer benefits was rejected because he was able to view and print the approval letter because at the time, he was in an approved status. However, when the Muskogee Veterans Affairs Regional Office reached out to HRC to verify whether or not he had fulfilled the incurred service obligation, it was determined he had not. Instead, he retired 31 July 2010 prior to fulfilling the obligation of 26 April 2011, and so his TEB request was rejected. Army G-1 policy allowed for a less than 4-year service obligation if the Soldier attained 20 years of service prior to 1 August 2012 and applied for TEB prior to 1 August 2013. In the applicant’s case, a 1 year service obligation was required by this policy. 5. 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 TEB may be approved for 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 (i.e., qualifying service)) 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. 6. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, in part, that for those who attain 20 years of service on or after 2 August 2009 and before 2 August 2010, one year of additional service from the date of request is required. 6. Army Regulation (AR) 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: The Board reviewed the applicant's request, his statement, supporting documents, evidence from his service record, and the relevant DOD and Army policy on TEB. The Board agreed that the applicant, because he attained 20 years of service on or after 2 August 2009 but before 2 August 2010, would have been required to complete one additional year of service from the date he requested TEB. The Board noted that this service requirement was not clearly communicated to him in correspondence he received from DMDC on 21 May 2010. The Board further noted the applicant's statement that personnel in the Fort Bragg Education Center confirmed he had no additional service obligation, even though that confirmation was not consonant with Army policy. Given that the program was in its early stages of implementation and given the flawed information the applicant received from a trusted source, by a preponderance of the evidence, the Board determined it would be appropriate, as an exception to policy, to correct the record to show the applicant is fully eligible for TEB with no active duty service obligation beyond the date of his retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX 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 to show, effective the date of his retirement, the applicant had fulfilled the active duty service obligation required for him to transfer his Post-9/11 GI Bill education benefits to his eligible dependents. 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. 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 TEB may be approved for 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 (i.e., qualifying service)) 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 that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, in part, that those who attain 20 years of service on or after 2 August 2009 and before 2 August 2010, one year of additional service from the date of request is required. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000763 5 1