IN THE CASE OF: BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20180011511 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20180011511 APPLICANT'S REQUEST AND STATEMENT: The applicant defers to counsel. COUNSEL'S REQUEST AND STATEMENT: 1. This case comes before the Army Board for Correction of Military Records (ABCMR or Board) on a remand from the U.S. District Court The defendant, the U.S. Government, moved for a voluntary remand of this case so the Board may reconsider the Plaintiff's (hereinafter referred to as the "applicant") claim for correction of his records to reflect that he made a timely request to transfer his education benefits to his dependent in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. Counsel states: a. In this case, the applicant executed a transfer of his benefits to his son but the transfer did not occur during the statutorily required time. The applicant contends the Army was obligated to inform him of the requirement to make a selection while still serving as a member of the Armed Forces but he "was never informed," nor was any documentation made showing that he had been informed. In November 2016, the Board denied the applicant's request for relief, finding that there is no requirement for "one-on-one" counseling about GI Bill benefits and the applicant should have used the resources available to him if he wished to learn more. b. The applicant argued that his case was identical to Thompson vs. United States, et al., Case No. 1:14-cv-1328, where the judge found in favor of a retired Army Lieutenant General with over 35 years of service concluding that a denial of TEB under the Post-9/11 GI Bill arbitrary and capricious and resulted in grave injustice. The Board’s decision in this case distinguished Thompson on the basis that the plaintiff in Thompson had "provided evidence from his unit showing that Enclosure 2 information pertaining to the [transfer] option under the Post-9/11 GI Bill was not included in his retirement briefing or retirement application and the plaintiff was not individually informed or counseled regarding the benefits." THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. A proposed Court Order, Case No. 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense (DOD) records and systems: * Orders 12-115-00001, dated 24 April 2012 * Docket Number AR20150012603, dated 10 November 2016 REFERENCES: 1. The Post-9/11 GI Bill went into effect on 1 August 2009. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The Department of Veterans Affairs (VA) is responsible for final determination of eligibility for educational benefits under this program. 2. The DOD established the criteria for eligibility and the transfer of unused education benefits to eligible family members on 22 June 2009. The policy limited the entitlement to TEB to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her request to transfer entitlement to educational assistance under this section, was eligible for the Post- 9/11 GI Bill; and a. had at least 6 years of service in the Armed Forces on the date of election and agreed to serve 4 additional years in the Armed Forces from the date of election; or b. had at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, was precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agreed to serve for the maximum amount of time allowed by such policy or statute; or c. was or became retirement eligible during the period from 1 August 2009 through 1 August 2013. A service member was considered to be retirement a. eligible if he or she had completed 20 years of active duty or 20 qualifying years of Reserve service. 3. The policy further states the Secretaries of the Military Departments would 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. FACTS: 1. The U.S. District Court , directed the ABCMR to reconsider the applicant's TEB claim. On voluntary remand, the U.S. Government asserted the Board could further clarify the specific facts upon which it relied in determining that the applicant’s case is distinguishable from Thompson vs. United States. The applicant consents to the reconsideration. Based on the aforementioned and at the direction of the court, the case will be considered by this Board. 2. The applicant was appointed as a Reserve commissioned officer of the Army on 19 October 1979. Although at the time of his appointment the applicant’s branch was unassigned, he would ultimately be assigned as member of the Judge Advocate General’s Corps. 3. Orders 12-115-0001, issued by Headquarters, 7th Civil Support Command on 24 April 2012, reassigned the applicant to the U.S. Army Reserve Control Group (Retired Reserve), effective 1 June 2012. 4. During the processing of the original case, the applicant stated in pertinent part: a. He attended an afternoon pre-retirement seminar provided by the 21st Theater Army Command Transition Assistance Center. After the briefing, he requested and received the power point slides used in the briefing. The slide briefing discussed many valuable and important elections and decisions to be made by retiring soldiers. Dozens of slides discussed the various educational programs available to veterans. Slides 105-111 specifically addressed the transfer eligibility requirements of Post 9/11 GI Bill benefits. He noted with satisfaction that his minor son met all of the requirements to be eligible to use his educational benefits. None of the slides, with their myriad of details, contained a. any notice that before retiring a soldier must make an election to transfer eligibility of educational benefits to eligible family members. b. In conclusion, he respectfully requested that the ABCMR allow him to make his election now to transfer the educational benefits he earned under the Post 9/11 GI Bill to his dependent son. He would have transferred this benefit to his son before he retired had he known of this requirement. He was not aware at the time of his retirement of the requirement to make this election nor was he aware of the consequences for failing to do so. 5. In the processing of the original case, an advisory opinion was obtained from the Chief, Finance and Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY. The opining official recommended disapproval and stated in pertinent part: a. 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 a dependent is considered an incentive, not a benefit. 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 that the Soldier commit to and fulfill additional service, in most cases, from the TEB request date. b. 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 (REFRAD), 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 (e.g., ACAP XXI or TAP XXI) since 2002 on-line and in-person. Soldiers are required to access SFL-TAP on-line initially and follow-up in person at the SFL-TAP Centers. c. The applicant had three years to research and obtain the eligibility criteria for the TEB incentive through DOD and other channels before his retirement on 1 June 2012. He was not restricted to his last few months in the Selected Reserve to obtain this information. d. Had the applicant submitted a request for TEB while on Active Duty or Selected Reserve status between 1 Aug 2009 - 31 May 2012, he would have incurred no TEB service obligation. However, he did not submit a TEB request during this timeframe as required by law and policy.7. A copy of the advisory a. opinion was provided to the applicant for his review and comment. In his response, he asked that the ABCMR compare his case to Thompson vs. United States, as the facts in that case were virtually identical to his own case. 6. The facts in the case of Thompson vs. United States differ from those at issue in this case. The DOD prescribed that the earliest a Servicemember could transfer Post 9/11 GI Bill education benefits to dependents was 1 August 2009. (See DTM 09-003.) In Thompson, the applicant (an Army three-star general) retired about 8 months after the 1 August 2009 implementation date. The applicant in Thompson therefore had a comparatively shorter period of time to educate himself about the specifics of the program or to otherwise have been exposed to DOD’s and VA’s media campaign about the program. In Thompson, the evidence also suggested that the DOD / VA efforts to educate Servicemembers about the program were in their nascent stages, and therefore may not have always disseminated exhaustive information about the program. In contrast to Thompson, the applicant in this case retired in June of 2012, or about 34 months after DOD’s implementation of the transferability period. The applicant therefore had a much larger period of time to: a) educate himself about a program that could materially benefit him or his dependents (or both), and b) be exposed to DOD and VA media publicity efforts regarding the program that, in contrast to Thompson, were no longer in their early stages. Had the court in adopted a “knew, or reasonably should have known” standard, and if that standard were applied to this case, it would be difficult to argue that the applicant in this case was not reasonably notified of the program’s transferability requirements. 7. The court in Thompson, however, did not adopt a “knew, or reasonably should have known” standard. Instead, the court appears to have adopted a standard that requires the government to prove not only that it provided “pre-separation … counseling on Post-9/11 GI Bill benefits” (as is required under DODI 1341.13, and which unquestionably occurred in both this case and in Thompson), but also prove that the applicant received actual notice of the requirement that benefits be transferred prior to separation from the armed forces. However, proving actual notice would probably still be inadequate given that the court in Thompson acknowledged that the applicant in that case “had read and relied on” a DOD- authored Information Paper which contained express language that the benefits may only be transferred to a dependent “while serving as a member of the Armed Forces.” Although the court was “convinced” that the Information Paper did in fact describe the requirement to transfer benefits while still on active duty, the court also determined that the applicant in Thompson did not understand the Information Paper. The court found a “reasonable layperson” would likely misunderstand the Information Paper. In contrast to Thompson, the applicant in 5 this case is a retired Army JAGC officer. While not necessarily an expert in education benefits, it is reasonable to assume he had a basic understanding of and ability to research the benefits to which he was entitled. 8. The Thompson case appears to instruct this Board that, in a TEB case in which an applicant claims that he or she did not know that transfer must occur prior to separation, the applicant should be afforded relief unless the record indicates: a) the government provided “pre-separation … counseling on Post- 9/11 GI Bill benefits” in accordance with DODI 1341.13; b) the applicant received actual notice of the need to make the transfer prior to the applicant’s separation; and c) the applicant understood the information communicated by the aforementioned actual notification. Absent such proof, the Thompson case indicates that applicants must be permitted to transfer their benefits long after their departure from the Army, despite Congress’ mandate that an “individual … may transfer [educational benefits] only while serving as a member of the armed forces when the transfer is executed.” See 38 U.S.C. § 3319(f)(1). 9. Generally ignorance of the law does not constitute a defense. However, the Thompson court found that “when the ignorance is a direct result of a failure to educate, the solider cannot be blamed and is entitled to relief.” Since the transferability requirements were established, there has been an extensive efforts to educate Servicemembers and the public about said requirements. The DOD, VA, and the Army conducted a publicity campaign that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the TEB eligibility criteria. While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly three years after the program was implemented. In the years between 1 August 2009 when Servicemembers were able to transfer Post 9/11 GI Bill education benefits to dependents and 1 June 2012 when the applicant retired, DOD, VA, and the Army developed copious resources, available online, in print, and in person, related to TEB requirements. Ongoing ignorance of these requirements does not appear attributable to a failure to educate by DOD, VA, or the Army. 10. The applicant's service and his sincerity are not in question. The requirements to submit the transfer of benefits while a member is on active duty or in the Selected Reserve is embedded in a federal statute. 11. The Board must determine whether the applicant received pre-separation counseling pertaining to the transfer of his education benefits, prior to his retirement, and whether the counseling he received comports with the requirements articulated in Thompson v. United States. 1. BOARD DISCUSSION: 1. The issue in this case is whether an error or injustice occurred with regard to the applicant’s failure to transfer his Post 9/11 GI Bill education benefits prior to his departure from a period of Active duty. More specifically, the issue is whether the Department of the Army or the Department of Defense acted in any unjust or erroneous way relative to the applicant such that relief is warranted. 2. Arguably, the Department of the Army failed to provide adequate counseling to the applicant as to what was required to officially transfer his education benefits. In Thompson v. United States, the U.S. District Court adopted a standard that appears to require the Department of the Army or the Department of Defense to demonstrate that an applicant received actual notice (and had actual knowledge) about the need to transfer the benefits prior to separation from active duty. Absent that demonstration, the court appears to require that an applicant be permitted to make the transfer despite the applicant no longer being on active duty. Consequently, the holding in Thompson v. United States instructs, if not necessarily compels, this Board to afford the applicant relief in this case. //NOTHING FOLLOWS//