IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20190011860 APPLICANT REQUESTS: * reconsideration of his request for correction of his record to show Transfer of Education Benefits (TEB) under his Post 9/11 GI Bill to his dependents * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) with continuation page * response from member of Congress * previous decision from the Board for Docket Number AR20120010573 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120010573 on 7 March 2013. 3. The applicant states the Post 9/11 GI Bill went into effect on 1 August 2009. He was deployed to Afghanistan from 2007 through 2008 for 18 months, Iraq in 2008, and from 2009 to 2010 to Iraq. 4. A review of the applicant’s service records shows the following: a. On 11 August 1986, he enlisted in the South Carolina Army National Guard and served through multiple enlistments. b. On 29 January 2007, he was ordered to active duty in support of Operation Enduring Freedom. Additionally, Orders Number A-03-706377 issued by US Army Human Resources Command (HRC) on 21 March 2007, ordered him to report to Afghanistan on 1 February 2008 for approximately 5 months and 26 days. A copy of a DD Form 214 for the period ending on 20 August 2008 shows he served a total of 1 year, 6 months, and 22 days of net active service this period before being honorably released from active duty. c. On 1 October 2008, the State of South Carolina Military Department, Office of the Adjutant General, Columbia, SC, issued the applicant a Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) notifying him he had completed the required years of qualifying Reserve service for retired pay. d. On 2 May 2009, he entered active duty in support of Operation Iraqi Freedom through 22 June 2010. e. On 19 March 2011, he completed a packet to request transfer to the Retired Reserve. f. Effective 2 April 2011, Orders Number 094-804 discharged him from the ARNG and transferred him to the Retired Reserve. His records contain a copy of ARNG Current Annual Statement which reflects he was credited with 23 years, 7 months, and 22 days of service for retired pay. 5. The applicant provides the following: a. A self-authored letter dated 28 August 2019, wherein he states the following: (1) He was never contacted by a retirement officer after he informed his unit that he wanted to retire. He was told a retirement officer would contact him and to this date, he has not received any contact about his retirement. It took two years for him to receive his retirement ribbon. The Post-9/11 GI Bill was enacted on 20 June 2008 and went into effect on 1 August 2009; and he retired in April of 2011, so that version was in its early phase. He was deployed to Afghanistan on or about 2007 through 2008; Iraq in 2008; and Iraq on or about 2009 through 2010; with three different states (South Carolina, Arkansas, and Oregon). During those deployments, he was away from his home unit and he is sure that during his deployments with different units, he was lost in the system because he wasn’t with his home units. (2) He also believes that the lack of resources he had being an infantry Soldier and being constantly down range hindered him as far as the admin side goes. During his research and according to the points of contact he spoke to, this has been a big problem with National Guard units and other people that have had the same problem. As stated in the Board’s decision, a massive public campaign was conducted; however, those communications did not reach remote Forward Operating Bases, and by the time they were back at the major bases, it was an afterthought. He is one of the few that fell through the cracks. b. DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending on 22 June 2010 which shows: (1) On 2 May 2009 he entered on active duty with the Army National Guard and served 1 year, 1 month, and 21 days. (2) In item 18 (Remarks), the applicant served in Iraq from 17 July 2009 through 18 April 2010. (3) He was released from active duty on 22 June 2010 under honorable conditions, by reason of completion of required active service. c. Letter from a member of Congress to the applicant dated 25 July 2019, wherein the Senator responded to the applicant’s recent contact and requested he complete and return the necessary form giving the Senator permission to look into the inquiry. d. Board’s decision for ABCMR Docket Number AR20120010573 wherein the applicant was informed on 19 March 2013 that his application was denied. In it, the Active Chief, Personnel Policy Division, National Guard Bureau (NGB) rendered an advisory opinion on 13 February 2013 which the applicant concurred with and which stated: (1) The applicant did gain eligibility for the Post 9/11 GI Bill benefit before being separated; however, he did not complete a request to transfer benefits online prior to leaving the service. The applicant’s last date in service with the ARNG was 2 April 2011. After a thorough review of his available military record, they recommend that he was eligible for the Post 9/11 GI Bill benefits to transfer to his dependents. (2) Public Law 110-252 and it’s amendment, Public Law 111-377, identifies the qualifications to receive the Post 9/11 GI Bill, one of which is that the service member must have performed on or after 11 September 2011 to gain eligibility for the Post 9/11 GI Bill. Public Law 110-252 also established the legal requirements on the transferability of unused Post 9/11 GI Bill benefits. This 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) The ARNG, Department of Defense (DoD), and Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers were not fully aware of the requirement to transfer benefits prior to leaving military service. (4) The ARNG, Personnel Program Resources and Manpower Division, in a Memorandum, dated 20 June 2012, indicted their office reviewed the applicant’s records and they recommended administrative relief for the applicant. 6. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. The Board noted the additional evidence presented by the applicant in paragraph 5a above and in that light reconsidered the NGB and ARNG recommendations. After reviewing the application, the supporting documents and additional evidence, the records, applicable regulations, and the facts above, the Board found that relief is warranted as recommended in the Board Determination and Recommendation below. 2. 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 required to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the decision of the ABCMR set forth in Docket Number AR20120010573 on 7 March 2013 to showing that the individual concerned elected Transfer of Education Benefits (TEB) under his Post 9/11 GI Bill to his dependents on 19 March 2011 and provide him that benefit. 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, 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. 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. 3. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, Transferability of Unused Benefits to Dependents. For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component Soldiers whose request to transfer benefits is approved will incur an additional service obligation in accordance with the below policy. Eligibility: (1) Any Soldier of the Armed Forces who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier’s request to transfer entitlement to educational assistance does not have an adverse action flag, is eligible for the Post 9/11 GI Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to an Retention Control Point (RCP) or Mandatory Retirement Date (MRD) must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred, or (4) Is or will become retirement eligible during the period from 1 August 2009, through 1 August 2013 and agrees to serve the additional period, if any, specified below. For the purposes of this paragraph, a Soldier is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under title 10 U.S.C § 12732. (a) Soldiers eligible for retirement on or before 1 August 2009, no additional Service is required. (b) Soldiers with an approved retirement date on or after 1 September 2009, but on or before 1 June 2010, no additional service requirement. (c) Soldiers who attain 20 years of service on or after 2 August 2009 and before 2 August 2010, one year of additional service from the date of request is required. (d) Soldiers who attain 20 years of service on or after 2 August 2010 and before 2 August 2011, two years of additional service from the date of request are required. (e) Soldiers who attain 20 years of service on or after 2 August 2011, and before 2 August 2012, three years of additional service from the date of request are required. (f) Paragraph 17a(4) does not apply to any Soldier who retired on or before 1 August 2009 unless recalled to active duty and serving on or after 1 August 2009 and before 2 August 2012. Those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post 9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the retired list on 1 August 2009. (g) Paragraph 17a(4) expires on 2 August 2013. 4. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011860 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1