ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 January 2020 DOCKET NUMBER: AR20190008961 APPLICANT REQUESTS: Retroactive transfer of his Post 9/11 G.I. Bill benefit to his dependent children. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Submit Transfer Request * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Transfer Education Benefits * Transfer your Post 9/11 G.I. Bill Benefits information * Additional Note 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 that he submitted his request to transfer his Post 9/11 G.I. Bill benefit to his dependent children prior to his retirement. His request was approved in 2012. A recent review of his military records indicates that there was an administrative error which impacts his benefits. a. He was advised in 2012 during his retirement processing that his education benefits were transferred and that he had met all requirements. He was never informed of the additional service obligation, had he been, he would have remained in the service to satisfy this requirement. He contests that the incentive program released in 2009 had undeclared administrative submission dates that unfairly penalized the service member. b. He was not aware of his retirement plans in 2009 and was under the understanding that the Army had implemented this program as a retention tool to retain service members to retirement. Service members, such as himself, that have served 20 years or more should not be penalized by an administrative retention goal. He was not selected for promotion in late 2011 which initiated his retirement process in early 2012. The result of the promotion board determined the limitations of his service. In 2013, the additional service requirement was discontinued in result to the Army reaching its retention goal. c. Based on his 21 years of honorable service, the misinformation provided to him and the ultimate discontinuation of the service requirement one year post his retirement, he requests correction of this administrative error resulting in his dependents being entitled to his Post 9/11 G.I. Bill benefits. 3. A review of the applicant’s service records reflects the following on: * 21 August 1989 – he enlisted in the Army Reserve; Cadet within the Army Reserve Officer Training Corp * 2 May 1991 (Order 81-6-A-178) he was ordered to active duty effective upon acceptance of appointment in the Army Reserve * 3 May 1991 – he was commissioned as an Officer in the Army * 29 June 1991 – he was placed on active duty * 24 November 2009 – he completed his pre-separation counseling with an anticipated retirement date of 31 August 2011 * 30 June 2012 (Order# 041-0002) – he was released from active duty and placed on the retired list 4. The applicant provides the following a: * Submit Transfer Request (no date) – reflective of his election to transfer his Post 9/11 benefits to his dependents beginning on 8 February 2012; he acknowledged the service requirement * DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 20 June 2012 – reflective of his completion of over 21 years of active service * Transfer Education Benefits dated 13 June 2019 – reflective of his request to transfer Post 9/11 G.I. Bill benefits being rejected/disapproved due to his failure to commit to the required additional service requirements * Transfer your Post 9/11 G.I. Bill Benefits information – reflective of the requirements to transfer education benefits; he identified meeting the “completion of at least 10 years of service on the date the request is approved, can’t commit to add 4 more years of service because either policy or statute, but agree to serve for the maximum amount of time allowed” requirement * Additional Note – stating that prior to 13 June 2019, the status of his request to transfer benefits reflected “approved” with each of his dependent children having a 12 month allocation 5. See additional applicable guidance below under REFERENCES BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board noted that the applicant on 24 November 2009, the applicant initiated perseveration processing for retirement on the anticipated date of 31 August 2011. He was retired on 30 June 2012. The applicant provided a copy of his TEB Request but it is undated. The applicant states he was approved for TEB in 2012 but the Board finds no evidence to support this. The board noted on the TEB request that the applicant checked that in order to qualify for TEB he understood that he had to remain in the Armed Forces for the period required indicating he know there was a service commitment for TEB. He provides a page entitled “Transfer your Post-9/11 GI Bill Benefits” that shows under “Can I Transfer Benefits” identifying circumstances under which TEB can be applied showing one highlighted by the applicant stating, “(If) You have completed a least 10 years of service on the date your request is approved, can’t commit to add 4 more years of service because of either a policy or statute, but agree to serve for the maximum amount of time allowed” (then you qualify for TEB). The source of this page is not shown. However, this shows that the applicant knew he had a 4 year service commitment if he applied for TEB. The applicant’s retirement appears to have been voluntary and not the result of a policy or statute. Accordingly, the Board found the evidence insufficient to prove error or injustice or to grant TEB as requested by the applicant. 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 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. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Public Law 110-252 section 3319 (Authority to Transfer Unused Education Benefits to Family Members) states that an individual transferring an entitlement to educational assistance under this section shall designate the dependent or dependents to whom such entitlement is being transferred, designate the number of months of such entitlement to be transferred to each such dependent and specify the period for which the transfer shall be effective for each dependent. An individual approved to transfer his or her 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. All applications will be submitted through the Transferability of Educational Benefits (TEB) website. * for those individuals eligible for retirement on August 1, 2009, no additional service is required * for those individuals who have an approved retirement date after August 1, 2009 and before July 1, 2010, no additional service is required * for those individuals eligible for retirement after August 1, 2009, and before August 1, 2010, 1 year of additional service after approval of transfer is required * for those individuals eligible for retirement on or after August 1, 2010, and before August 1, 2011, two years of additional service after approval of transfer are required * for those individuals eligible for retirement on or after August 1, 2011, and before August 1, 2012, three years of additional service after approval of transfer are required 4. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual’s entitlement as follows: * to the individual’s spouse * to one or more of the individual’s dependent children * to a combination of the spouse and dependent children 5. The total number of months of entitlement transferred by an individual may not exceed 36 months. An individual transferring an entitlement to educational assistance shall: * designate the dependent or dependents to whom such entitlement is being transferred * designate the number of months of such entitlement to be transferred to each such dependent * specify the period for which the transfer shall be effective for each dependent 6. DODI 1341.13 (Post 9-11 G.I. Bill) states that an individual transferring entitlement may modify or revoke at any time the transfer of any unused portion of the entitlement so transferred. An individual may add new family members, modify the number of months of the transferred entitlement for existing family members, or revoke transfer of entitlement while serving in the Uniformed Services, however they may not add family members after retirement or separation from the Military Services, but may modify the number of months of the transferred entitlement or revoke transfer of entitlement after retirement or separation for those family members who have received transferred benefits prior to separation or retirement NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190008961 6 1