IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20220008828 APPLICANT REQUESTS: * Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his eligible dependent(s) * A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) * Directive-Type Memorandum (DTM) 09-003: Post-9/11 GI Bill, 22 June 2009, Incorporating Change 1, 10 September 2010 * Military Personnel Message (MILPER) Number 13-102, 15 April 2013 * Department of Defense Instruction (DODI) Number 1341.13 – Post-9/11 GI Bill, 31 May 2013 * Email communication between applicant and G-1, 26 May and 22 June 2022 * Office of the Deputy Chief of Staff, G-1 Memorandum, 22 June 2022 * Applicant's memorandum to the Army Review Boards Agency, 26 June 2022 * Personnel Action Packet Checklist * Post-9/11 GI Bill: Transferability information document 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: a. He respectfully requests to be allowed to transfer his eligible Post 9/11 Gl Bill Education Benefits to family members. The original policy allowed for a Soldier with 10 or more years of service to have his TEB request approved with an Obligation End Date (OED) reflecting the Mandatory Retirement Date (MRD). This is the policy that has been presented to him multiple times, including in 2016 by the 63rd Regional Support Command (RSC), Retirement Services Office (RSO) and again in 2018. b. Attendance at this pre-retirement briefing was within the timeline established by RSO at 15-19 years of service. The policy that was presented during the briefing was that there was no restriction after 6 years for when service member could transfer educational benefits to their family members. Service members needed 6 years of service to apply and 10 years of service total. With this being the policy, the RSO's guidance was to wait until a service member is close to retire before transferring education benefits to eligible family members since the decision cannot be reversed and to allow for accumulation of additional qualifying service. Although no change in Public Law (PL) 110-252, the policy for transferring education benefits was changed, effective 12 January 2020, that now makes him ineligible to transfer as he is approaching his MRD and precluded by policy from extending. c. First, he entered the program under the policy that provided a provision allowing the transfer of benefits with an obligation end date reflecting the MRD. This was the policy presented to him throughout his eligible time and for almost 10 years through various training sessions. From the inception of the program on 1 August 2009 until 12 January 2020, the policy for transferring Post 9/11 Gl Bill Education Benefits to eligible dependents was to have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election and, if precluded by either standard policy (Service or Department of Defense (DoD)) or statute from committing to 4 additional years, agree to serve for the maximum amount of time allowed by such policy or statute. This policy presents no upper limit on when a service member could transfer the benefit. d. Second, that he, in good faith, followed the guidance provided to him at multiple pre-retirement briefings and other training events conducted by the 63rd Retirement Services Office, benefit coordinators and other subject matter experts to wait until applying for retirement before requesting transfer of education benefits. The current checklist when applying for retirement list transferring education benefits as an action item. This would indicate that benefits could be transferred upon requesting retirement and that policy changes have not been widely communicated. e. Third, there was no change in Public Law (PL) 110-252 that would have caused a need for change to the policy for transferring education benefits. Military Personnel Message (MILPER) Number 13-102 emphasizes the policy that transfer is allowed when precluded by either policy or statute from committing to an additional four years. As far as he knows, the procedures of this MILPER message have not been superseded or rescinded. 3. A review of the applicant's military record shows the following: a. On 29 May 1993, DA Form 71 (Oath of Office – Military Personnel) shows the applicant was appointed as a commissioned officer (Infantry Branch) and executed an oath of office. b. Orders Number 005-2201 published by Headquarters, U.S. Infantry Center, Fort Benning, GA, assigned the applicant to the U.S. Army transition point with a report date of 1 March 1999, and date of discharge 2 March 1999. c. On 2 March 1999, DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve). d. On 6 May 1999, DA Form 71 shows the applicant was appointed as a Reserve commissioned officer and executed an oath of office. e. Orders Number 0004332142.00 published by the Department of the Army assigned the applicant to the USAR Retired Reserve, effective 1 June 2023. The Orders show 26 years, 5 months, 16 days total service and 7 years, 9 months, 3 days total active federal service. f. DA Form 5016 (Retirement Accounting Statement) dated 27 June 2023 shows the applicant earned a total of 27 years qualifying for retirement and 4422 points earned and creditable. 4. The applicant provides: a. Directive-Type Memorandum 09-003: Post-9/11 GI Bill, dated 22 June 2009, Incorporating Change 1, 10 September 2010, which establishes policy, assigns responsibilities, and prescribes procedures under chapter 33 of Title 38, United States Code (USC), for carrying out the Post-9/I1 GI Bill. It also establishes policy for authorizing the transferability of education benefits in accordance with section 3319 of Title 38, USC. b. MILPER Message Number 13-102, dated 15 April 2013, which states in part, this message will expire 1 March 2015. The procedures will remain in effect until superseded or rescinded. The purpose of this message is to emphasize that all post 9/11 GI Bill TEB requests submitted and approved on/after 1 August 2013 will incur a four-year service obligation from the TEB request date, regardless of years in service (except when precluded by either policy or statute from committing an additional four years, e.g. temporary early retirement authority). The 4-year service obligation incurred by TEB requests approved on/after 1 August 2013 begins on the TEB request date and must be served in the same Army component. c. DODI 1341.13 (Post-9/11 GI Bill), dated 31 May 2013, which states in part, this Instruction, in accordance with the authority in DoD Directive 5124.02, establishes policy, assigns responsibilities, and prescribes procedures for implementing DoD authorities and responsibilities for chapter 33 of title 38, USC (also known and hereafter referred to as "the Post-9/11 GI Bill"). Establishes policy for authorizing the transferability of education benefits (TEB) in accordance with section 3319 of the Post-9/11 GI Bill. Incorporates and cancels Directive-Type Memorandum 09-003. d. Email communication between the applicant and G-1 (Directorate of Military Personnel Management), dated 26 May and 22 June 2022, discussing the applicant's ETP request for TEB. G-1 informed the applicant that the 4-year service obligation was required by statute and therefore an ETP cannot be granted at Army level. The applicant was referred to the ABCMR. e. Office of the Deputy Chief of Staff, G-1, Chief, Military Personnel Enlisted Division memorandum, dated 22 June 2022, stating the applicant's request for an ETP to Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements), paragraph a-15a(2)(a) to waive the four-year service remaining requirement to transfer Post 9/11 Gl Bill education benefits is disapproved. The four-year service obligation is required by statute in Title 38, USC, Section 3319 (Authority to transfer unused education benefits to family members. Department of Defense policy in DODI 1341.13 (Post 9/11 GI Bill), dated 31 May 2013, Incorporating Change 1, 12 July 2018, and therefore an ETP cannot be granted at the Army level. The applicant's request to transfer his Post 9/11 Gl Bill education benefits on 4 February 2021 was rejected due to insufficient retainability on his date of election. f. Applicant's memorandum to the Army Review Boards Agency dated 26 June 2022, requesting to be allowed to transfer his eligible Post 9/11 GI Bill education benefits to family members. He also outlines his contentions. g. Personnel Action Packet Checklist (request for retired reserve (voluntary)) which provides the required documents and information for officers transferring to the Retired Reserve, other than retirement in lieu of board procedures, separation for failure to be selected for promotion, or mandatory removal for service or age will be 9 months from the date on which the officer signs the DA Form 4651 (Request for Reserve Component Assignment or Attachment). h. Post-9/11 GI Bill: Transferability information document that provides pertinent information and facts related to Post 9/11 GI Bill transferability. 5. On 25 April 2023, the U.S. Army Human Resources Command, Chief, Education Incentives Branch, provided an advisory opinion for this case and recommended disapproval of the applicant's request to waive the Post 9/11 GI Bill TEB service obligation. The advisory official stated in pertinent part: a. On 4 February 2021, the applicant submitted a TEB request; however, he was rejected by our office on 5 February 2021, due to his insufficient remaining service time. At the time of his request, the applicant had a Mandatory Retirement Date of 1 June 2021, which was insufficient time to meet the four-year mandatory ASO required by the TEB retention incentive. This office sent the applicant an email explaining our reasoning for rejecting his 4 February 2021 TEB request (reference Enclosure 1). This was the only time our records indicate the applicant submitted a formal TEB request via the milConnect website. b. On 26 May 2022, the applicant submitted an ETP request to the Directorate of Military Personnel Management (DMPM) to waive the four-year ASO. On 22 June 2022 his ETP request was denied as the four-year ASO is required by law and subsequent policy (reference Enclosure 2). c. On 5 April 2023, after receiving the request for an advisory opinion this office contacted the Defense Manpower Data Center (DMDC) to obtain a copy of the applicant's milConnect access history. The DMDC system records a date/time stamp every time a Soldier's TEB milConnect website account is accessed. DMDC confirmed that the applicant accessed milConnect on 18 September 2015 but did not actually submit a request (reference Enclosure 3). Had the applicant submitted a TEB request at that time, he would have been approved for the retention incentive because he would have had sufficient service time to complete the four-year mandatory ASO. DMDC also confirmed that he submitted only one TEB request on 4 February 2021, which we rejected for insufficient retainability. d. The applicant was eligible to request TEB starting 1 August 2009 and would have been approved at the time because he would have met the program requirements. He also could have requested TEB up to 31 May 2017 and again could have been approved with a four-year TEB ASO. The applicant was eligible to receive approval for a transfer of his Post 9/11 Gl Bill education benefits to eligible dependents for more than eight years; however, our records indicate he did not perform this action. e. ln the correspondence to your office, the applicant stated that, "The original policy allowed for a Soldier with 10 or more years of service to have his TEB request approved with an OED reflecting the MRD." Paragraph 17 a(3) of DA Post 9/11 Gl Bill Policy Memorandum (dated 10 July 2009) does not support his statement. The above referenced paragraph speaks to Soldiers who had at least 10 years of service in the Armed Forces on the date of their election, but could not commit to the four-year ASO "due to a Retention Control Point (RCP) or MRD must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of the request..." However, this policy was rescinded by Army Regulation (AR) 621-202 (Army Educational lncentives and Entitlements), effective 26 October 2017 as it did not meet the intent of PL 110-252; therefore, is not applicable to his 4 February 2021 TEB request. f. The applicant further referenced the current Army Reserve Personnel Action Packet Checklist for retirement. Block 14, No. 11 of that form addressed the verification for the transfer of Post 9/11 Gl Bill benefits. The purpose of this step is to verify if the Soldier has an approved TEB request and if the Soldier has completed the by-law required 4-year ASO. lf a Soldier has not completed the ASO, the retirement request would be rejected. g. Additionally, the applicant stated, "the policy for transferring education benefits was changed effective 12 January 2020." This change limited the eligibility to transfer those benefits to service members with at least 6 years of total active duty or selected reserve service and serve four additional years from the date of the request." The "policy change" that the applicant is referring to is DoDl 1341.13, Enclosure 3, paragraph 3, A; which would have implemented a "6 to 16 year" maximum service transferability limit at which Soldiers were allowed to request TEB. However, this policy change was rescinded by Fiscal Year 2020 National Defense Authorization Act prior to its implementation. Consequently, subsequent updates to DoDl 1341.13 removed this restriction. The basic TEB program participation requirement of at least six-years of service in the Armed Forces and the four-year ASO have never changed since the inception of the program on 1 August 2009. h. Although he was assigned a new MRD of 1 June 2023 based on his subsequent promotion to Colonel on 24 June 2021, he remains ineligible for TEB because his new MRD is still less than the required four-year retention incentive's ASO. Again, please note that a Soldier earns the Post 9/11 Gl Bill because of their Active Duty service; however, TEB is a retention incentive requiring the four-year ASO, not a Soldier's entitlement benefit. 6. On 27 April 2023, the applicant was provided a copy of the HRC advisory opinion to allow for comments or rebuttal. 7. On 1 May 2023, the applicant's Senate representative wrote the Congressional Actions, Department of the Army, Congressional Inquiry Division on behalf of the applicant, who had a question regarding a policy that affects his open application with the Army Review Boards Agency. The applicant provided correspondence as well as an authorization allowing the Senator's interest. 8. On 8 May 2023, the applicant responded to the HRC advisory opinion via email and states, in summary: a. He entered the program, and throughout his service time, he was under the policy that provided a provision allowing the transfer of benefits with an OED reflecting the MRD and that those precluded by statue or policy from committing to an additional four years were eligible to transfer education benefits. This was the policy presented to him throughout his eligible time and for almost 10 years through various training sessions. b. That he, in good faith, followed the guidance provided to him at multiple pre- retirement briefings and other training events conducted by education benefit counselors and other subject matter experts to wait until applying for retirement before requesting transfer of education benefits. These official representatives and Army leadership should be held to honor their word in accordance with Army Values. c. There was no change in Public Law (PL) 110-252 that would have caused a need for change to the policy for transferring education benefits. Even Congress and Veteran Organizations recognize that the change was unjust and detrimental to the force, declaring the change in policy unacceptable and demanding a swift reversal. d. There was no communication that the policy was going to be change and no time was provided for Soldiers to execute TEB before the change would affect them. The lack of communication is highlighted by the unawareness of Congress and Veteran Service Organizations. e. Service members who have reached maximum retainability have met the intent of PL 110-252 and should be allowed to execute TEB options. Again, there is more detail in the attached response that support the summary bullet points above and address the mistakes and confusion in the advisory opinion. The two attachments are the same, just one ink signed, and one digitally signed. 9. The applicant provided a 9-page rebuttal to the HRC advisory opinion wherein he highlights, outlines, and addresses what he believes are mistakes and confusion in the HRC advisory opinion. The entire rebuttal memorandum is contained within the supporting documents for review and consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. Upon review of the applicant’s petition, available military records, and U.S. Army Human Resources Command (HRC), Chief, Education Incentives Branch advisory, the Board concurred with the advising official finding the applicant did not meet the four-year mandatory service obligation as required by statute in Title 38, USC, Section 3319 (Authority to transfer unused education benefits to family members. Department of Defense policy in DODI 1341.13 (Post 9/11 GI Bill), dated 31 May 2013. The Board noted the DMDC system records a date/time stamp every time a Soldier's TEB milConnect website account is accessed. DMDC confirmed that the applicant accessed milConnect on 18 September 2015 but did not actually submit a request. The Board determined, had the applicant submitted a TEB request at that time, he would have been approved for the retention incentive because he would have had sufficient service time to complete the four-year mandatory ASO. 2. The Board found the applicant had numerous avenues to obtain information about the transfer of Post 9/11 GI Bill Education Benefits (TEB). The TEB is a retention/recruiting incentive, not an entitlement. The Board determined, without taking into effect the alleged lack of notification to transfer education benefits prior to his retirement, the applicant is advised the requirement is embedded in public law. The Board agreed there is no evidence that shows he attempted to transfer education benefits and that the transfer was not processed and approved in a timely manner, which would enable the Board to possibly correct the record to show the request was accepted and approved timely. Without such evidence, the Board must adhere to this law. The Board found no error in HRC’s denial of the applicant’s request to transfer his benefits. Therefore, the Board denied relief. 3. 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. 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. ADMINISTRATIVE NOTE(S): N/A 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. AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that 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. The ABCMR will decide cases based on the evidence of record. The ABCMR is not an investigative agency. Paragraph 2–11 states that 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. 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. 4. 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. 5. AR 621-202 (Army Educational Incentives and Entitlements), dated 26 September 2017 prescribes Army-unique policies, responsibilities, and procedures for the administration of Veterans' education programs and education incentives authorized by law, and provides information on Title 38, USC, Chapter 30 (38 USC Chapter 30), 38 USC Chapter 32, 38 USC Chapter 33, Title 10 USC Chapter 1606, and 10 USC Chapter 1607. This major revision clarified TEB eligibility. a. 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 Transfer of Education Benefits (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 Selected Reserve (SELRES). The regulation also states: b. Paragraph 4-15a(2)(a) states that Soldiers must meet the following service eligibility and agreement. Have at least 6 years of eligible service (qualifying active duty or SELRES) in the Armed Forces on the date of election and agree to serve four additional years from the date of request, regardless of the number of months transferred. Soldiers who are not eligible to commit to 4 additional years of service from the TEB request date are not eligible to transfer benefits. c. Paragraph 4-15b(2) states that former service members who failed to request the TEB while on qualifying active duty or assigned to the Selected Reserve (SELRES), are not eligible for Transferability Eligibility benefits. 6. Title 38, USC, Section 3319 (Authority to transfer unused education benefits to family members) provides that, the Secretary concerned may permit an individual who is entitled to educational assistance under this chapter to elect to transfer to one or more of the dependents, a portion of such individual's entitlement to such assistance, subject to the limitation under subsection (d) (Limitation on Months of Transfer). The purpose of the authority is to promote recruitment and retention in the uniformed services. The Secretary concerned may exercise the authority for that purpose when authorized by the Secretary of Defense in the national security interests of the United States. Subsection (b) (Eligible Individuals) states, an individual referred to in subsection (a) is any member of the uniformed services who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least — (1) six years of service in the armed forces and enters into an agreement to serve at least four more years as a member of the uniformed services; or (2) the years of service as determined in regulations pursuant to subsection (j) (Regulations). Subsection (f)(1) (Time for transfer) states that, subject to the time limitation for use of entitlement under section 3321, and except as provided in subsection (k) or (l), 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008828 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1