IN THE CASE OF: BOARD DATE: 27 August 2020 DOCKET NUMBER: AR20190015032 APPLICANT REQUESTS: Post 9/11 GI Bill 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) * Self-Authored letter, dated * DD Form 4 (Enlistment/Reenlistment Document), dated 22 August 1985 * DA Form 71 (Oath of Office), dated 29 January 1990 * DD Form 2648 (Preseparation Counseling Checklist), dated 14 May 2008 * Orders 062-0014, dated 3 March 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 September 2009 * DA Form 31 (Request and Authority for Leave), dated 22 October 2008 * DA Form 5016 (Chronological Statement of Retirement Points), dated 6 August 2020 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. The applicant states in pertinent part, he would like to transfer his Post 9/11 GI Bill benefits from himself to his son in accordance with implementing instructions as now established, and not at the time of his final out processing/ departure from Germany in June 2009 and his retirement in September 2009. Since the implementation, instructions were not finalized. He met with several people, but was informed the Garrison Wiesbaden Education office could not transfer the education benefits due to a lack of guidance and instructions. He departed with the understanding that he could do this later without penalty since he had, after all, earned the benefits. 3. A review of the applicant’s service records reflects the following: a. On 22 August 1985, he enlisted in the US Army Reserve (USAR) for 8 years beginning in the pay grade Cadet within USAR Control Group (Reserve Officer Training Corps) (DD Form 4) b. On 14 May 1988, he was appointed an officer in the Army, without a component, as a Second Lieutenant and he executed his oath of office (DA Form 71). c. On 9 January 1989, he was ordered to active duty effective upon acceptance of appointment in the US Army Reserve (Order 4-3-A-22). d. On 29 January 1990, he was commissioned in the Regular Army in the Infantry Branch as a Second Lieutenant and he executed his oath of office (DA Form 71). e. On 14 May 2008, he checked he desired counseling regarding Education benefits when he completed his pre-separation counseling (DD Form 2648 (Preseparation Counseling Checklist)). f. On 1 October 2009, he was released from active duty and placed on the retirement list effective 1 October 2009. g. The applicant’s record is void of his election to transfer his Post 9/11 GI benefits to his dependents. 4. The applicant provides the following documents, in addition to the documents also found in his service record: a. DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 September 2009, which shows he was honorably retired with over 20 years of active service. b. DA Form 31 (Request and Authority for Leave), dated 22 October 2008 – reflects his dependents. c. DA Form 5016 (Chronological Statement of Retirement Points), dated 6 August 2020, in which it shows the applicant having over 21 years of Regular Army service. 5. Previous advisory opinions from the Chief, Special Actions Branch, U.S. Army Human Resources Command, stated in part: a. The first years after the (Tittle 38, United States Code (USC) Section 3301-3324, Post 9/11 Education Assistances) law was passed, many Soldiers reported that they did not understand the process and there was no uniform practice in place to get pertinent information to the service members. The DOD and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9-11 G.I. Bill and subsequent transfer of education benefits. Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers were not fully aware of the requirement to transfer prior to leaving military service. b. During the initial implementation of this program, many Soldiers in all grades were confused as to their eligibility and/or the application process. This confusion was exacerbated by the heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave during the 60 to 90 days of the program implementation. In addition, officials at some education centers may have also been confused with regard to the implementation instructions and may not have conducted proper counseling. 6. See applicable guidance below under REFERENCES. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board agreed that the applicant was fully eligible to transfer his Post-9/11 GI Bill education benefits to his dependents. The Board noted that he retired in the early months of the program's implementation and likely did not receive the information he needed to make a timely election prior to his retirement. The Board determined the applicant's record should be corrected to show he made a timely election for TEB prior to retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 showing he made a timely election to transfer his Post-9/11 GI Bill education benefits to his chosen dependents prior to his retirement. 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 (Armed Forces), U.S. Code, section 1552(b) (Correction of Military Records: Claims Incident Thereto), 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. 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. 3. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. Applications for transferability will start on June 29, 2009. However, the effective date of any transfer will be no earlier than August 1, 2009, regardless of application date. All applications will be submitted through the Transferability of Educational Benefits (TEB) website, located at https://www.dmdc.osd.mil/TEB/. An eligible individual: a. is any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill: b. has at least 6 years of service on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or, c. has at least 10 years of service (active duty and/or Selected Reserve), is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute; or, d. is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013; a service member is considered retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service * for those individuals eligible for retirement on 1 August 2009, no additional service is required. * for those individuals who have an approved retirement date after 1 August 2009, and before 1 July 2010, no additional service is required. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015032 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1