IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230005119 APPLICANT REQUESTS: correction of his Army National Guard Records to show he transferred to least one month of education benefits under the 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) 2006-2007 . NGB Form 22 (Report of Separation and Record of Service) 1990 to 2018 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 is requesting a correction to transfer eligibility in his Post 9/11 GI Education Bill application dated 2010-02-18 for his child dependent () as listed in MilConnect TEB and DEERS (Defense Eligibility Reporting System). He cannot transfer eligible months to Parker as he is presently recorded in TEB as ineligible for transfer for any of his remaining months of GI Education Bill Benefits. He was advised by the Army Career Counselor that his ineligibility is because of an administrative error in his application because he did not assign at least one month of TEB benefits in the system in 2010. The newly established process for applying to transfer Post 9/11 GI Education Bill benefits to his spouse and dependents was extremely difficult and confusing in 2010. The systems and process for transfer were not well understood by administrators and the legal requirement to add one month to his dependent or he is ineligible for any future transfer of benefits opportunity was not explained in the system or by counselors. This oversight in the process requirement has led to an unjust result for himself and his otherwise eligible dependent. He is now 18 years old. He requests the Board expedite a change to his eligibility in the records and TEB. 3. Review of the applicant’s service records shows: a. Having had prior service, the applicant entered the Army National Guard (ARNG) on 1 March 1990 as a commissioned officer. He served in a variety of assignments, including active duty (December 2002 to October 2003 and June 2006 to August 2007) and he was promoted to lieutenant colonel in 2014. b. He was mobilized and entered active duty on 2 June 2006. He served in Iraq from 15 August 206 to 6 August 2007. He was honorably released from active duty on 24 August 2007 to the control of the State ARNG, after completing 1 year, 2 months, and 23 days of active service. c. On 11 April 2008, FLARNG issued the applicant a Notification of Eligibility for Retired Pay at age 60 (20-Year Letter). d. On 17 April 2018, FLARNG published orders transferring him to the Retired Reserve effective 12 March 2018. e. He was honorably discharged from the ARNG and transferred to the Retired Reserve on 12 March 2018. His NGB Form 22 shows he completed 28 years and 12 days of ARNG service during the period covered by this NGB Form 22. f. His NGB Form 23C, ARNG Retirement Points History Statement, shows he completed 30 years and 6 days of qualifying service towards non-regular retirement. g. On 30 March 2023, he applied for retired pay at age 60. His application was approved. His application reflects a spouse, , date of marriage October 1999, and two children, , born in June 2004 and , born in July 2005. h. On 16 November 2023, the U.S. Army Human Resources Command published orders placing him on the retired list in his retired grade of LTC effective . 4. On 9 August 2023, the National Guard Bureau (NGB) provided an advisory opinion in the processing of his case. An NGB official restated the applicant’s request for his records be corrected to reflect that he transferred (TEB) his Post-9/11 GI Bill Benefits to all his dependents before he separated from the ARNG. a. Title 38, Section 3319 requires Service Members to transfer at least one month of benefits to their eligible dependents before separating from service. The applicant transferred benefits to his spouse and oldest child at the time but did not transfer any benefits to his youngest child before separating. b. Due to the fact that the applicant was not properly counseled on the requirement to transfer his benefits to all eligible dependents before separating from service, the NGB recommend the board grant relief. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond/submit comments. No response was received. 6. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of Public Law 110-252 limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, have at least 6 years in an active duty or Selected Reserve status and no current negative. action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. The TEB incentive does not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation. 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. Upon review of the applicant’s petition, available military records and the National Guard Bureau – Special Actions Branch advisory opinion, the Board concurred with the advising official recommendation to grant approval, finding the applicant was not properly counseled on the requirements to transfer his benefits to all his eligible dependents before separating from service. The Board found there is sufficient evidence to support the correction of his Army National Guard Records to show he transferred to least one month of education benefits under the Transfer of Education Benefits (TEB) to his dependent. As such, the Board granted relief. Mbr 1 Mbr 2 Mbr 3 :X :X :X 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 Army National Guard Record records of the individual concerned be corrected to show the applicant transferred to least one month of education benefits under the Transfer of Education Benefits (TEB) to his dependent prior to separating from the service. 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, U.S. Code, 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. The Post 9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict; however, the option to transfer this education benefit to eligible dependents are a retention incentive. The transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for service nor a transition benefit. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. a. Soldiers receive counseling on all GI Bills, including the Post 9/11 GI Bill benefit and the TEB incentive at various venues throughout the Soldier’s career (in/out­processing at Education Centers, Commander’s Calls), upon demobilization or release from active duty, and during the last year before separation or retirement (Soldier for Life (SFL)-Transition Assistance Processing (TAP)). Soldiers have had access to and received counseling on GI Bill benefits through SFL-TAP (i.e., ACAP XXI or TAP XXI) since 2002 on-line and in-person. b. The TEB incentive does not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible. A Soldier acquires TEB eligibility as stated in paragraph 1 and makes dependents eligible by awarding at least one month to the dependent via the TEB website and fulfilling the TEB service obligation. c. Soldiers can/could obtain TEB eligibility criteria through the Department of Defense (DOD) DTM 09-003 (dated 22 June 2009), the Department of the Army (DA) Post 9/11 GI Bill Policy Memorandum (dated 10 July 2009), paragraph 17a(4), DOD, DA, and HRC websites, various briefings at the installation level, and briefings through SFL-TAP. He could have used the DOD and DA resources available to him. //NOTHING FOLLOWS//