IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20220003716 APPLICANT REQUESTS: * Post 9/11 GI bill Transfer of Education Benefits (TEB) to his dependent children * personal appearance before the Board via video or telephone 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 (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: a. He is requesting corrections to be made to his record enabling to transfer the remainder of his GI Bill benefits to his dependent children. He was informed the paperwork to do the transfer had to be done while he was completing his Medical Evaluation Board in 2010 and that it was not included with his exit paperwork, during that time. He was also informed that because it was missed there had been a 10-year window of time to complete needed paperwork, but he was also never notified of the 10- year window. During this 10-year window of when he would have been allowed to correct the paperwork, he accessed and used some of his GI Bill benefits to complete a two-year degree. During this timeframe, he was in communication with the Department of Veteran Affairs (VA) GI Bill department and was never told he had to complete paperwork and the 10-year window to do so was closing. 3. The applicant's service records contain the following documents for the Board's consideration: a. On 6 August 2002: (1) DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) was completed enlisting the applicant in the U.S. Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 17 February 2004, he was discharged from the USAR DEP and entered active duty for a period of 4 years. (2) The applicant completed a DD Form 2366 (Montgomery GI Bill Act of 1984, Basic Enrollment) enrolling in the GI Bill and accepting the terms. b. On 23 October 2006, the applicant completed a DD Form 4 reenlisting in the Army for a period of 4 years. c. On 21 June 2010, a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) was completed on the applicant. It shows he was found to be physically unfit for duty and the board recommended he receive a 40 percent disability rating with a permanent disability retirement. d. On 22 September 2010, the applicant was honorably retired from active duty by reason of disability, permanent (enhanced) and transferred to USAR Control Group (Retired Reserve). DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed 6 years, 7 months, and 6 days active duty service. e. The applicant's service record is void of documentation showing he transferred his GI Bill benefits to his dependents. 4. In the processing of this case, an advisory opinion was obtained on 1 August 2022, from the U.S. Army Human Resources Command (HRC), Chief, Education Incentive Branch. The advisory recommended disapproval. It states, in pertinent part, the TEB website shows the applicant did not submit a TEB request after it became available on 1 August 2009 or the one year after, prior to his retirement on 22 September 2010. On 25 July 2022, HRC contacted the Defense Manpower Data Center to determine if a TEB request was submitted by the applicant, they confirmed he accessed the TEB website on 16 June 2022, which was after his retirement date. Again, the applicant did not submit a TEB request. TEB is a retention incentive, not a Soldier's entitled benefit. The applicant has a 15-year delimiting date starting on his retirement date of 22 September 2010. His last day to use Post 9/11 GI Bill benefits for himself is 21 September 2025. He also stated he was not informed of the paperwork needed to request TEB. From inception of the TEB program, all actions have been electronic via the milconnect website. On 26 July 2022, HRC contacted the VA regarding the applicant's communication with them. On 29 July 2022, the VA confirmed there was only one recorded communication between the VA and the applicant on 22 October 2021 to update his contact information. A review of the HRC Education Incentive Branch reflects no contact with him. 5. On 12 August 2022, the applicant was provided a copy of this advisory opinion to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 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 found that relief was not warranted. The applicant's contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows he attempted to transfer at least one month of the incentive to eligible dependents before retiring due to a disability, which is required by Public Law. 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, 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 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. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 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. 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. b. Has at least 10 years of service in the Armed Forces (active duty and/or service in the 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. 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 service or 20 qualifying years of Reserve service. 5. TEB and the Soldier in the IDES (MEB/PEB) Process: * a Soldier must request an exception to policy (ETP) through their Career Counselor/Retention Noncommissioned Officer and command leadership to extend or reenlist for the TEB 4-year service obligation * the ETP request must be sent to the Army G-1 Enlisted Professional Development Branch (Retention) for approval * the Soldier must have an approved ETP and extend or reenlist for the TEB four- year service obligation before the Soldier receives the PEB "unfit for duty" determination * upon medical disability separation/retirement, HRC will adjust the TEB service obligation from the four-year service obligation to the medical disability separation/retirement effective date //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003716 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1