IN THE CASE OF: BOARD DATE: 18 May 2020 DOCKET NUMBER: AR20190007473 APPLICANT REQUESTS: Correction of his record to show: * Transfer of Education Benefits (TEB) under his Post 9/11 GI Bill benefits to his dependent son * A personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders, dated October 2004 Orders, dated 25 September 2006 * Orders, dated 11 October 2006 * Orders Number, dated 24 January 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 2008 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 during the completion of the sanctuary act, he was not informed he needed to transfer his Post 9/11 GI Bill benefits to his dependent before retiring from the service. 3. A review of the applicant’s available official records show the following: a. The applicant’s records contain a DA Form 2339 (Application for Voluntary Retirement) showing the following: * 3 May 1977 – 15 September 1992, the applicant served in the Regular Army * 16 September 1992 – 30 November 2008, the applicant served in the U.S. Army Reserve (USAR) b. On 30 November 2008, the applicant was honorably retired from active duty by reason of sufficient service for retirement. He completed 2 years, 1 month, and 3 days of net active service during his last period of active duty, with 17 years, 11 months, and 23 days of prior active service, and 11 years, 6 months, and 2 days of prior inactive service. 4. The applicant provides: a. Orders, issued by the 81st Regional Readiness Command, , showing the applicant was ordered to active duty for a period of 545 days in support of Operation Enduring Freedom with assignment to Fort Leonard Wood, MO. b. Orders, issued by Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, showing Orders was amended pertaining to the applicant’s release from active duty, and assigned him to the USAR Control Group (Reinforcement). c. Orders, issued by the U.S. Army Human Resources Command, Alexandria, Virginia, ordered the applicant to active duty from the USAR Control Group (Reinforcement) for a period of 2 years and 15 days to obtain 20 years of active Federal service under the extended active duty sanctuary program. d. Orders, issued by Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, showing the applicant was assigned to the U.S. Army transition center Fort Leonard Wood for processing for retirement. Effective date of retirement was 30 November 2008 with placement on the retired list on 1 December 2008. 5. See applicable references below. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. The governing regulation provides 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. The Board further noted that a service member 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. 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 : 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, USC, 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 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 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 must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009. d. 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. e. A Soldier must have initially requested to transfer benefits on the Department of Defense (DOD) TEB online database. The TEB online database was operational on 29 June 2009. 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. 4. Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements) states Soldiers not eligible for transferability eligibility benefits are Soldiers who retired on or before 1 August 2009, by law, are not eligible to transfer unused Post 9/11 GI Bill benefits because their last day of duty was 31 July 2009 or earlier. 5. Army Regulation 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) AR20190007473 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1