ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20180016096 APPLICANT REQUESTS: Transfer of Education Benefits (TEB) to his dependents. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of Eligibility for Retired Pay at Age 60 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 he wants the eligibility for TEB to be corrected. He was serving in Iraq and applied for TEB to be used for his dependents and never received an email confirmation. He also never received a letter. He was not properly informed about the confirmation process. 3. The applicant provided his Notification of Eligibility for Retired Pay at Age 60 showing his time in service made him eligible for retired pay on application at age 60. 4. A review of the applicant’s records show: * 9 February 1987 – he enlisted in the United States Army Reserve (USAR) * 9 March 2006 – he received his notification for retired pay at 60/ Twenty Letter * 5 December 2014 – he retired from the USAR 5. On 30 April 2019, the Army Review Board Agency (ARBA) received an advisory opinion from the Department of the Army Human Resource Command Incentive Program Manager showing: * recommend disapproval of the applicant’s request for TEB based on the Post 9/11 GI Bill is a benefit to the service member, but the TEB is a retention incentive * Soldiers receive counseling and briefings on the TEB throughout a Soldier’s career at various times, during various venues, in person, on line and information is available through the Department of Defense (DoD) Directive-Type Memorandum 09-003, dated 22 June 2009, and DoD, Department of the Army and Army Human Resources Command websites * a Soldier acquires TEB eligibility by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation * the applicant would not have incurred an additional service obligation because he had at least 20 qualifying years for retirement on or before 1 August 2009 * he did not submit a TEB request after it became available on 1 August 2009 or the five years afterward and prior to his retirement on 5 December 2014 * the applicant retired effective 5 December 2014 which was not within the TEB 90-day implementation phase; therefore, he is considered as having sufficient time to have researched the TEB incentive 6. Public law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, public law 110-252, 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. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the advisory opinion. The Board discussed the applicant’s claim, his eligibility to transfer benefits, the lack of documentation in the record or submitted by the applicant that shows he attempted to do so, the five years when he could have submitted a request and the conclusion of the advisory opinion. The Board found insufficient evidence in the record or provided by the applicant to determine an error or injustice occurred. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 7/3/2019 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. Public Law 110-252 limits the 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. a. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. b. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS). Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). Wards of State are not eligible for the benefits. Once the benefits are transferred, children may use the benefits up to age 26. d. A Soldier must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009. e. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase which is the first 90 days of the program. g. A Soldier must have initially requested to transfer benefits on the DOD TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22- 1990e, to request to use the benefits. 3. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and on or after 1 August 2009, is eligible for the Post-9/11 GI Bill and, in pertinent part, is or becomes retirement eligible during the period 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 service or 20 qualifying years of Reserve service.