IN THE CASE OF: BOARD DATE: 9 January 2024 DOCKET NUMBER: AR20230003816 APPLICANT REQUESTS: Correction of his record to show Post 9/11 GI Bill Transfer of Educational Benefits (TEB) to his dependents. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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, he was misinformed about Post 9/11 GI Bill Benefits. He was not informed he had to elect transfer of benefits to his eligible dependents prior to his discharge date. He would like to now transfer the remainder of his benefits to his dependents and is being told he is ineligible. His appeal is to allow this benefit transfer. 3. A review of the applicant's official record shows the following: a. On 1 July 1992, the applicant enlisted in the Army National Guard (ARNG). He continued service through extensions and reenlistments. b. On 15 August 2004, the applicant entered active duty in support of Operation Iraqi Freedom. c. On 6 January 2006, the applicant was honorably released from active duty and transferred to his ARNG unit. He completed 1 year, 4 months, and 22 days of net active service. d. On 13 September 2012, the applicant entered active duty in support of Operation Enduring Freedom. e. On 20 October 2013, the applicant was honorably released from active duty and transferred to his ARNG unit. He completed 1 year, 1 month, and 4 days. f. On 1 November 2013, the Joint Force Headquarters, Adjutant General's Department issued a Memorandum, Subject: Notification of Eligibility for Retired Pay for Non-Regular Service (20-Year Letter) was issued which notified the applicant he was eligible for retired pay. g. On 21 January 2016, Orders Number 021-060 issued by the Texas ARNG honorably discharged the applicant from the ARNG and assigned him to the Retired Reserve, effective 31 December 2015. 4. On 28 July 2023, in the processing of this case, the National Guard Bureau, Chief, Special Actions Branch, provided an advisory opinion and stated: a. Title 38, USC, Section 3319 requires service members to request TEB prior to separating from service. The applicant initially gained eligibility for the Post-9/11 GI Bill in 2004 and had been eligible for TEB since the start of the program on 1 August 2009. Though he was eligible for TEB since 1 August 2009, there is no evidence he requested TEB prior to retiring in 2015. b. Because the applicant was not properly counseled on the requirement to transfer his benefits prior to separating from service, this office recommends the Board grant relief. This opinion was coordinated with the Army National Guard Education Services Branch. 5. On 5 August 2023, the applicant was provided with a copy of the advisory opinion for comment. 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 applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant served in the ARNG from July 1992 to December 2015, with multiple active duty mobilizations. The law governing the Post 9/11 TEB requires service members to request TEB prior to separating from service. The applicant initially gained eligibility for the Post-9/11 GI Bill in 2004 and had been eligible for TEB since the start of the program on 1 August 2009; however, there is no evidence he submitted a request for TEB prior to his transfer to the Retired Reserve in 2015. Although TEB does not require one on one counseling, the Board reviewed and agreed with the NGB advisory official’s finding that because the applicant was neither aware of this program nor properly counseled on the requirement to transfer his benefits prior to separating from service, an injustice has occurred. 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 and Army National Guard records of the individual concerned be corrected by: • Showing the applicant timely submitted a request to transfer his educational benefits under the Post 9/11 GI Bill TEB to his eligible dependents prior to his transfer to the Retired Reserve on 31 December 2015 • Showing the appropriate office timely received and approved TEB t eligible dependents provided all other criteria has been met 1/9/2024 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 active duty service obligation based on the time in service the Soldier had on 1 August 2009. 3. On 22 June 2009, the Department of Defense 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//