IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220008173 APPLICANT REQUESTS: correction of his records to show Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his son. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect, his son was graduating from high school in 2022. He was starting college at University in the fall. He would like to transfer his GI Bill benefits to his son so they could better support his educational needs. He was told he had declined to transfer his education benefits, which he did not do. He honorably served for 23 years most of which was in Special Operations. He was wounded multiple times and is currently 100 percent permanently disabled. He had been told he declined to TEB. This should be easily correctable. It was available when he retired and should apply now. He needs help with his son's college. Once he tried to give the benefit to his son, he was told he had declined that option. Why would any parent do that? He needs the benefit now. 3. The applicant's service records contain the following documents for the Board's consideration: a. On 19 November 1987, the applicant enlisted in the Regular Army and served continuously until his length of service retirement. b. DD Form 214 shows the applicant was honorably retired from active duty on 31 December 2010. He completed 23 years, 1 month, and 12 days of active-duty service. c. The applicant did not provide documentation, showing he completed a TEB prior to his retirement. 4. In the processing of this case, the U.S. Army Human Resources Command (HRC), Chief, Education Incentives Branch, completed an advisory opinion on 30 November 2022, for the Board's consideration, which states, in effect: a. HRC recommended disapproval of the applicant's request. The post 9/11 GI Bill is a servicemember's benefit; however, TEB is a retention incentive requiring an Additional Duty Service Obligation (ADSO) calculated from their TEB request date. It is always the servicemember's responsibility to know their TEB ADSO period and the date they will complete their requirement. b. To transfer the post 9/11 GI Bill to dependents, an individual must be on active duty or in the selected reserve on or about 1 August 2009; have at least six years in active duty or selected reserve status; and have no current negative action flag, commit to the ADSO, and transfer benefits to the dependents through the TEB website. All benefits must be transferred before the servicemember separates or retires. Public Law 110-252 makes no provisions for waiving this requirement. c. Soldiers earn the post 9/11 GI Bill for their use because of their active-duty service; however, the ability to transfer it to their eligible dependent(s) is neither a reward for service or a transition benefit, but a retention incentive requiring the commitment to and then fulfillment of the mandatory by-law four year ADSO. Furthermore, the post 9/11 GI Bill TEB program is an integral part of the Army's talent management initiative. Consequently, the post 9/11 GI Bill transfer incentive was included in the statute for the express purpose of recruitment and retention. d. 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 TEBs. This information was available to the applicant prior to his retirement. e. The applicant could have obtained TEB eligibility criteria through the Department of Defense Direct-Type Memorandum 09-003, dated 22 June 2009, Attachment 2, paragraph 3a(3); the Department of the Army Post 9/11 GI Bill Policy Memorandum, dated 10 July 2009, paragraph 17a(4); Department of Defense, Department of the Army, and HRC websites; various briefings at the installation level; and briefings through Soldier For Life. He could have used the Department of Defense and Department of the Army resources available to him. f. All TEB information available included the requirement to transfer while either in active duty or selected reserve status, and the possible requirement to serve an additional service obligation. Specifically, the Department of the Army Post 9/11 GI Bill Policy Memorandum paragraph 17 stated, "For the purposes of transferability, Armed Forces include all active-duty service and all selected reserve service regardless of branch of service or component." Also, paragraph 17g(1) stated, "Time for Transfer. A Soldier 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. " g. The TEB website shows the applicant did not submit a TEB request, after it became available on 1 August 2009 or the year after, prior to his retirement on 31 December 2010. On 9 November 2022, HRC contacted the Defense Manpower Data Center (DMDC) to determine if a TEB request was submitted by the applicant. DMDC confirmed that the applicant accessed the TEB website on 17 March 2016, which was after his retirement date. DMDC also confirmed the applicant did not submit a TEB request. TEB is a retention incentive, not a Soldier entitled benefit. h. The applicant has a 15-year delimiting date staring on his retirement date of 31 December 2010. His last day to use the post 9/11 GI Bill benefits for himself is 30 December 2025. i. The applicant's military service may make his dependents eligible for other types of assistance. HRC enclosed a document containing numerous agencies that may assist. Additionally, the post 9/11 GI Bill benefits are still available for the applicant. 5. On 7 December 2022, the advisory opinion was provided to the applicant to allow him the opportunity to respond. He did not respond. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. One potential outcome was to deny relief based on the U.S. Army Human Resources Command advisory opinion recommendation. However, upon review of the applicants’ petition, available military record and U.S. Army Human Resources Command- Education Incentives Branch advisory opinion, the Board considered the advising official recommendation but determined there is sufficient evidence in his military records showing the applicant served the required time with 23 years of prior active Federal service. The Board found the applicant did not receive the proper notification regarding his options for transfer of his TEB. The Board noted, the applicant was not provided any evidence to support the claims that he declined his TEB entitlements. Based on this, the Board granted relief for the applicant to show he submitted and his TEB was approved. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 the applicant filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his family member prior to his retirement, provided all other program eligibility criteria are met. 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. The Post-9/11 GI Bill went into effect on 1 August 2009. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The Veterans Affairs (VA) is responsible for final determination of eligibility for educational benefits under this program. 3. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill; and a. Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or b. Has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, 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 c. Is or becomes retirement eligible during the period from 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 duty or 20 qualifying years of Reserve service. 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. The policy states, in part, for Transfer request submission: a. All requests to transfer benefits must be submitted on the TEB website. b. The TEB website will require Soldiers to use a CAC card or to establish a logon ID and password in order to access the site before they can complete the request. c. Soldiers can access the TEB website after submission of their request to monitor the status of their request. d. Soldiers must use the TEB website to modify or revoke transferred benefit amounts as well as to add a new dependent. If a Soldier adds a new dependent after the initial request is approved, there is no additional service requirement for adding new dependents. However, the original additional service commitment will remain in effect. 5. Army Regulation 621-202 (Army Educational Incentives and Entitlements) paragraph 4-15 states Soldiers may elect to transfer their Post-9/11 GI Bill education benefits to their spouse, one or more of their children, or a combination of spouse and children through the TEB website in the milConnect portal at https://www.dmdc.osd.mil/mil- connect or http://milconnect.dmdc.mil. Only dependents listed as eligible in the TEB website may receive the Post-9/11 GI Bill education benefit. TEB is neither an entitlement nor a transition benefit, but was specifically identified by statute as a tool for recruitment and retention of the career force. The ability to transfer the Post-9/11 GI Bill education benefit was created as a recruitment and retention incentive for additional service within the Uniformed Services. Soldiers may increase, decrease, or revoke months to an eligible dependent at any time as long as at least one month is transferred to the dependent before the Soldier leaves the Armed Forces. Once a Soldier leaves service, the Soldier may not transfer benefits to dependents who had not received at least one month while the Soldier was on active duty or in the SELRES. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008173 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1