ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2020 DOCKET NUMBER: AR20180010559 APPLICANT REQUESTS: correction of his records to show he transferred his Post-9/11 GI Bill education benefits to his son. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Certificate of Release or Discharge from Active Duty) REFERENCE: 1. Title 10, U.S. 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 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 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 as a member of the Selected Reserve on or after 1 August 2009. 3. On 22 June 2009, the Department of Defense 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 Department of Defense) 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. Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post-9/11 GI Bill Transfer of Education Benefits (TEB) 4-Year Service Obligation for Approved TEB Requests Submitted on/after 1 August 2013, provides that all Post-9/11 GI Bill TEB requests submitted and approved on/after 1 August 2013 will incur a 4-year service obligation from the TEB request date regardless of years in service except when precluded by either policy or statute from committing an additional 4 years (e.g., Temporary Early Retirement Authority). The 4-year service obligation incurred by TEB requests must be served in the same Army component. A 0, 1, 2, or 3-year service obligation will no longer be available for those who request TEB on/after 1 August 2013. By law, those Soldiers who retired and were placed on the Retired List on/before 1 August 2009 are ineligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty was on/before 31 July 2009. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. 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 on or about 8 August 2017, he called the U.S. Army Human Resources Command (HRC) about transferability of 18 months of his Post-9/11 GI Bill educational benefits. a. He was told by a TEB manager that there was no record of his transfer and there was no recourse for a failed attempt for TEB. b. He transferred his educational benefits on or about 12 November 2008 on the TEB website while serving on active duty at U.S. Central Command. He is aware that he failed to check on the status of his TEB before his release from the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve) on 13 December 2011. If he had been aware of this problem, or if he had a USAR pre-retirement briefing before his release date, he is certain he would have identified the problem. He was never given the opportunity. He does not understand why the transfer of his Post-9/11 GI Bill education benefits is not recorded in the TEB website. There should be an electronic trail somewhere on the TEB server. He has no evidence because all of his emails during that time are on the U.S. Central Command main server. All he has is his honest character. 3. On 8 December 2005, HRC issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 4. His DD Form 214 shows he was released from active duty and transferred to the USAR Control Group (Individual Ready Reserve) on 30 May 2010 by reason of completion of required active service under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-7. He completed 3 years, 10 months, and 23 days of net active service during this period. 5. HRC Orders C-06-009130, dated 18 June 2010, voluntarily released him from assignment to the USAR Control Group (Reinforcement) and assigned to the USAR Sustainment Command Detachment, 7th Communications-Electronics Command, effective 18 June 2010. 6. Headquarters, 99th Regional Support Command, Orders 10-295-00011, dated 23 October 2010, released him from his current assignment and assigned him to the Headquarters and Headquarters Detachment, 641st CS Group, effective 21 November 2010. 7. Headquarters, 81st Regional Support Command, Orders 11-258-00041, dated 15 September 2011, released him from his current assignment and assigned him to the USAR Control Group (Reinforcement) effective 15 September 2011 due to senior grade over strength. 8. HRC Orders C-12-117840, dated 13 December 2011, released him from assignment to the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve effective 13 December 2011. 9. HRC Orders C03-991732, dated 5 March 2019, retired him and placed him on the Retired List in the rank/grade of lieutenant colonel/O-5 effective 6 March 2019. 10. On 25 February 2020, the Chief, Education Incentives Branch, HRC, rendered an advisory opinion wherein he recommended disapproval of the applicant’s request to transfer his Post-9/11 GI Bill education benefits based on the following: a. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Furthermore, 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 on or after 1 August 2009, have at least 6 years in an 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 TEB website. 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. The option to transfer education benefits 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/out- processing at Education Centers, Commander's Calls), upon demobilization or release from active duty, 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 (i.e., Army Career and Alumni Program 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, or a reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility as stated above and makes dependents eligible by awarding at least 1 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-9/11 GI Bill Policy Memorandum, dated 10 July 2009, paragraph 17a(4); Department of Defense, Department of the Army, and HRC websites; various briefings at the installation level; and briefings through SFL-TAP. The applicant 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 on active duty or in a Selected Reserve status, and the possible requirement to serve an additional service obligation. Specifically, the Department of the Army Post-9/11 GI Bill Policy Memorandum, paragraph 17 (second sentence) states, "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) states, "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. The TEB website shows the applicant did not submit a TEB request after it became available on 1 August 2009 or the 2 years after, prior to his transfer to the U.S. Army Retired Reserve on 12 December 2011. h. The applicant stated in his DD Form 149 that he submitted the TEB request on or about 12 November 2008. Please note the Defense Manpower Data Center did not make the TEB website available to service members until 28 June 2009 with an effective date of 1 August 2009. The TEB website shows no indication of a TEB request by the applicant. i. In April 2011, the ABCMR and the Department of the Army G-1 Directorate of Military Personnel Management/Enlisted Professional Development Branch (the 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 transition leave during the first 90 days and subsequently retired may not have received sufficient information during this time frame to submit a TEB request. This time frame is referred to as the "TEB 90-day implementation phase." Any Soldier retiring within this time frame would have to submit a request for relief through the ABCMR. Any Soldier retiring after this time frame is considered as having sufficient time to have had access to TEB incentive information. The applicant transferred to the U.S. Army Retired Reserve effective 12 December 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. j. This office sympathizes with the applicant and his dependents; however, the time to make himself aware of TEB eligibility criteria was before he submitted the retirement request. k. Although the TEB incentive is not available to him, his military service may make his dependents eligible for other types of assistance. (He attached a document containing numerous agencies that may assist.) 11. On 3 March 2020, the Army Review Boards Agency forwarded the advisory opinion to the applicant for comment/rebuttal. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, his military record, an advisory opinion, and regulatory guidance were carefully considered. The Board agreed with the advisory opinion in that, the applicant stated he submitted the TEB request on or about 12 November 2008 and the Defense Manpower Data Center did not make the TEB website available to service members until 28 June 2009 with an effective date of 1 August 2009. The Board determined that there was insufficient evidence of an error or injustice to warrant relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found 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. ADMINISTRATIVE NOTE(S): The applicant could have transferred his educational benefits to eligible dependents at any time after 1 August 2009 while he was serving in the Selected Reserve or on active duty. Prior to 1 August 2013, he would not have incurred an additional service obligation since he already had 20 years of qualifying Reserve service. After 1 August 2013, all service members incurred an additional service obligation upon application to meet TEB eligibility. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010559 6 1