IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210006733 APPLICANT REQUESTS: * retroactive entitlement to Post 9-11 GI Bill Transfer of Education Benefits (TEB) to his dependent child * a telephone hearing or a personal appearance hearing APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), online application, 8 March 2021 * Certificate of Birth * Marriage Certificate, State of Delaware, 14 November 1993 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 31 August 2014 * Defense Enrollment Eligibility Reporting System (DEERS) Identification Card of dependent 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 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: a. He transferred eligibility on the MilConnect website of my 9-11 GI Bill to his three children in December 2008 in accordance with all regulations and requirements. There is no reason why he would not have transferred 9-11 GI Bill benefit eligibility to his son, as the transfer of eligibility to my other two children was clearly successful as seen in MilConnect. He transferred this to his three children in 2008 and it was a complete error of some sort that did not receive eligibility and at that time there was nothing on the web site that provided a warning that he was making an error. He thought he transferred the benefit to each child, and the website has changed multiple times since that evening in December 2008. He is willing to make a sworn statement that there was nothing that indicated to him on the website that would not be eligible when he transferred the benefit to his children. b. At this time in December 2008 he was 2 weeks away from deploying to Iraq for 12 months as a battalion commander and he was trying to make sure he had his personal effects in order prior to deployment by transferring my Post-9/11 GI Bill to his children in the event he was killed in action or incapacitated in combat. This was a very stressful time for he and his family; things were moving fast with the holidays and imminent deployment. There is no reason why he would not have transferred the benefit. He checked again in 2014 prior to his retirement and it reflected all three children having the benefit. He has not used this benefit yet since his other two children went to college on Army ROTC and Academic scholarships, and now that is in High School he is making college plans for him. 3. A review of the applicant's service records shows: a. He was born on. On 12 May 1990, he was commissioned a second lieutenant in the Signal Corps of the Regular Army. He married on 14 November 1993. b. He was promoted to: * Captain on 1 July 1994 * Major on 1 June 1990 * Lieutenant Colonel on 1 June 2006 * Colonel on 1 September 2011 c. He completed foreign service in: * Bosnia, 1 April 1998 to 30 August 1998 * Afghanistan, 13 July 2002 to 15 October 2002, 1 April 2003 to 6 October 2003, and 1 May 2004 to 7 July 2004 * Iraq, 20 January 2009 to 14 January 2010 d. His DA Form 2656 (Data for Payment of Retired Personnel), 19 November 2013, shows the dates of birth (DOB) of his dependent children: e. On 31 August 2014, he was retired. His DD Form 214 for this period shows he was retired by reason of sufficient service for retirement under the provisions of Army Regulation 600-8-24, paragraph 6-13C(1). He completed 24 years, 3 months, and 19 days of net active service this period. 3. On 28 December 2021, the U.S. Army Human Resources Command provided an advisory opinion in response to the applicant's request, recommending disapproval of his request. It reads, in part: a. On 20 December 2009, the applicant requested the transfer of 9 months to his dependent and the transfer of his 27 months to , his dependent born on , prior to leaving military service. He did not transfer benefits to his other dependents: , born on or his spouse, . His TEB request was approved on 20 December 2009 with a TEB service obligation until 19 December 2010 for a 1 year TEB service obligation. He did not transfer to any other dependent before he retired from the U.S. Army on 31 August 2014. b. Because he hadn’t transferred at least one month to his other dependents before retiring, he cannot make these dependents eligible for TEB while in retired status per Title 10 U.S.C. section 3319(f)(1). Changes to the number of months allocated to dependents can be made at any time, to include once a Soldier leaves military service, provided the Soldier allocates at least one month of benefits to the respective dependent prior to separation or retirement. If the Soldier fails to transfer at least one month to a dependent, the Soldier may not transfer to that dependent after leaving military service. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense, and Department of Veterans Affairs initiated a comprehensive 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. This information was available to the applicant prior to his retirement on 31 August 2014. d. His military service may make his dependents eligible for other types of assistance. We have enclosed a document containing numerous agencies that may assist. Additionally, the Post 9/11 GI Bill benefits are still available to him. 4. On 13 January 2022, a copy of this advisory opinion was provided to the applicant to give him an opportunity submit a response/rebuttal. He did not respond. 5. 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. All requests and transactions will be completed through the Transferability of Education Benefits Web application. 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, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board reviewed the Human Resource Command advisory and concurred with the findings. Based on the preponderance of the evidence, the Board determined the evidence presented insufficient of an error or injustice to warrant a recommendation for relief. 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. X 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, United States 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 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. 1. Title 10, United States 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 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. 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. b. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 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. 4. 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. a. 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. Soldiers are expected to serve the additional service obligation. b. 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 if 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, c. Procedures. All requests and transactions will be completed through the Transferability of Education Benefits Web application. //NOTHING FOLLOWS//