IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210010092 APPLICANT REQUESTS: correction of his record to show he transferred Post 9/11 GI Bill education benefits to an additional dependent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Defense Manpower Data Center (DMDC) letter * Legion of Merit Certificate 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 upon returning from deployment in January 2011, upon his first Army National Guard (ARNG) drill date, he was instructed to assign his GI bill benefits to his children if he did not intend to use them, and he was instructed that 36 months would not satisfy a 4-year university education requirement. The guidance he received was incorrect, and 6 months and 2 days is now available to transfer to his daughter still attending college. He believes the guidance to not assign at least one day to his third daughter was in error and a mistake. When he retired another daughter was still attending the University of Vermont. He did not know there was a balance until after she graduated and he had left the ARNG, and he was told no changes were possible. 3. A review of the applicant's service records shows the following: a. On 11 August 1996, having had prior enlisted service in the Regular Army, the applicant was appointed as a Reserve commissioned officer in the ARNG and executed an oath of office. b. On 10 December 2009, the applicant entered active duty in support of Operation Enduring Freedom. c. On 22 January 2011, the applicant was honorably released from active duty and returned to his ARNG unit. The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows he completed 1 year, 1 month, and 13 days of net active service with 3 years, 7 months, and 16 days of prior active service, and 20 years, 6 months, and 12 days of prior inactive service. d. On 1 January 2016, the applicant was honorably released from the ARNG and transferred to the Retired Reserve. 4. The applicant provides: a. DMDC letter showing he requested the transfer of benefits on 21 March 2011, which was approved and his obligation end date was also 21 March 2011. b. Legion of Merit Certificate presented to him for exceptionally meritorious service to the Vermont ARNG over his 30 years of military service. 5. On 23 August 2021, in the processing of this case an advisory opinion was obtained from the National Guard Bureau, Chief Special Actions Branch, who recommended approval and opined in pertinent part: a. The applicant served in the Regular Army from 22 November 1983 to 11 November 1985, the U.S. Army Reserve from 21 February 1992 to 06 August 1994, and the ARNG from 8 August 1994 to 1 January 2016. He was honorably discharged from the ARNG and transferred to the Retired Reserve with 25 years, 10 months, 11 days of total service. He completed two qualifying periods of service for Post 9/11 GI Bill: in support of Operation Enduring Freedom Title 10, USC, section 13204 from 4 March 2004 to 15 September 2004, and Operation Enduring Freedom Title 10, USC, section 12302 from 10 December 2009 to 22 January 2011. He states in his DD Form 149 that upon reporting to his first drill with the ARNG after deployment he was advised to transfer his benefits to his children if he did not intend to use them, but the 36-month benefit would not be sufficient to satisfy a 4-year degree. This was incorrect guidance, as he has approximately 6 months of the benefit remaining. b. The Soldier completed a transfer of education benefits request on 21 March 2011 with no additional service requirement. He transferred all 36 months to his daughter Al- and transferred 0 months to his daughter Ad- and 0 months to his spouse. He claims he was not aware of the requirement to transfer months to each dependent before retiring and claims he was not properly counseled. He is currently not serving and therefore is unable to add dependents for transfer of education benefits (TEB) without redress by the ABCMR. c. The applicant mobilized shortly after the inception of the TEB program and initiated his transfer of benefits upon his return. Although significant measures were taken to ensure Soldiers and leaders were properly informed, many Soldiers were not fully aware of the rules regarding education benefit transfers, nor the scope of the Post 9/11 GI Bill benefit. It is reasonable to say that he was not properly counseled regarding his education benefits and the TEB program. It is clear based on his statement that he intended for all of his dependents to have the option to utilize this education benefit until it was exhausted. This office recommends approval of his request to add his daughter Ad- as an eligible recipient of the Post 9/11 GI Bill. 6. On 25 August 2021, by email, the applicant responded to the advisory opinion concurring with the recommendation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. The Board concurred with the conclusion of the advisory official that the applicant likely was not properly counseled prior to submitting his TEB request. The Board determined the applicant's record should be corrected to show he transferred one month of Post-9/11 GI Bill education benefits to another daughter, Ad-, prior to his transfer to the Retired Reserve. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX 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 transferred one month of Post-9/11 GI Bill education benefits to another daughter, Ad-, prior to his transfer to the Retired Reserve. 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 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. Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve. a. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. b. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. c. A Soldier must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009. d. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase which is the first 90 days of the program. e. A Soldier must have initially requested to transfer benefits on the Department of Defense (DOD) TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. 3. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and on or after 1 August 2009, is eligible for the Post-9/11 GI Bill and, in pertinent part, is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013. A service member is considered to be retirement-eligible if he or she has completed 20 years of active service or 20 qualifying years of Reserve service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010092 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1