IN THE CASE OF: BOARD DATE: 2 November 2021 DOCKET NUMBER: AR20200010128 APPLICANT REQUESTS: his transfer of education benefits (TEB) be corrected to allow his daughter to receive his Post 9-11 benefits. * APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 effect: a. When his brigade demobilized at Fort Stewart in March 2010, he transferred his education benefits. He was assisted by noncommissioned officers (NCOs) with transferring his benefits; therefore, it is not fair that his records were erased or that the information is not showing. b. He did not know that his TEB was not in the system until his daughter was requesting information on Post 9-11 benefits. This is destroying his daughter’s opportunity to receive her education. In addition, he lost all of his documents in a house fire, which resulted in the death of his mother. 3. A review of the applicant’s service record shows: a. He enlisted in the Georgia Army National Guard on 11 October 2004 as a prior service member. b. His NGB Form 22 (National Guard Report of Separation and Record of Service) reflects he was honorably transferred to U.S. Army Reserve Control Group (Reinforcement) on 1 November 2011, under the provisions of National Guard Regulation (NGR) 600-200, paragraph 6-35j, unsatisfactory participation. He served 7 years and 21 days of net active service this period. He also served 7 years and 21 days of total prior Reserve Component service. 4. On 15 June 2021, the National Guard Bureau provided an advisory opinion in the processing of this case. The advisory official reiterated the applicant's request to have his transfer of benefits extended to his dependents. The official recommended disapproval and stated: a. The applicant requests that his transfer of education benefits be extended to his dependents. He stated that he conducted the transfer of education of benefits during his demobilization at Fort Stewart in 2010. However, currently, the records show that he has not established eligibility for transfer of benefits. b. Based on the research done by the Professional Education Center (PEC) the applicant was not eligible to receive the transfer of benefits. According to their review, as of the time of his discharge from the Pennsylvania Army National Guard the applicant had not completed the required service obligation to allow the transfer to occur. While the PEC has confirmed he should have personal eligibility, his subsequent discharge for non-participation resulted in him not completing his service obligation to earn eligibility to transfer his benefits. c. It is the recommendation of this office that the applicant’s request be denied. Based on the review of the applicant’s file, the applicant has personal eligibility, but he did not complete the amount of time needed to secure the TEB incentive. While the recommendation is unfortunate, approval of the request would be inappropriate at this time given the applicant’s failure to complete the required service obligation. d. The National Guard Bureau Education Office concurs with this recommendation. The Texas Army National Guard did not provide input on this recommendation. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional comments/rebuttal. He did not respond. 5. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020, Public Law 110-252, 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Evidence of record shows the applicant would not have reached a required service obligation after the implementation of the program, as he failed to participate and was separated with less than an honorable discharge characterization. Had the applicant submitted a TEB request at the end of the qualifying mobilization, he would not have fulfilled the required service obligation as he was discharged for Unsatisfactory Participation 1 year, 6 months and 24 days after completion of the only qualifying service period. The Board determined there was no error or injustice 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 (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 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020, Public Law 110-252, 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. On 22 June 2009, DoD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. a. An eligible individual 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: * 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, * 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, * 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 b. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill; the counseling will be documented and maintained in records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. c. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200010128 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1