IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120002356 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an exception to policy to transfer educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his family member.

2.  The applicant states:

* he submitted the transfer of benefits on 8 June 2011 via the Defense Manpower Data Center (DMDC) TEB website and upon submission, the website indicated his submission was in accordance with the instructions; therefore, he did not print a copy of his submission
* after waiting for several months, he was informed by the TEB that there was no record of his submission; he contacted multiple agencies in an effort to resolve the issue
* he was directed by senior officials of the U.S. Army Human Resources Command (HRC) to submit his application to this Board
* he believes the error may have been caused by an electronic collision of his military records since he had records in both the active and the Reserve database

3.  The applicant provides:

* Printout of Post-9/11 GI Bill Transferability Policy Quick Reference
* Printout of an incomplete transfer request
* 
Instructions how to submit a transfer request
* Letter of denial from the Department of Veterans Affairs (VA)
* VA Form 22-1990E (Application for Family Member to Use Transferred Benefits)
* 2010 and 2011 mobilization orders
* 2011 transition and Retired Reserve orders 
* Sanctuary retirement memorandum
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Having had prior commissioned service in the Regular Army, the applicant was appointed as a Reserve commissioned officer and executed an oath of office on 4 June 1993.  He served in a variety of assignments and he attained the rank of lieutenant colonel (LTC).

2.  He entered active duty on 28 March 2007 for active duty operational support and he served in Kuwait in support of contingency operations.

3.  On 20 February 2011, the 81st Regional Support Command, Fort Jackson, SC, published orders transferring him to the Retired Reserve, effective 20 February 2011.

4.  On 9 June 2011, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  He received sanctuary retirement approval and continued on active duty through 31 July 2011.

6.  On 31 July 2011, he was retired by reason of sufficient service for retirement and he was placed on the Retired List in his retired rank of LTC on 1 August 2011.  He completed 20 years and 15 days of creditable active service.

7.  He submitted the following documents:

* An application, dated 9 August 2011, to the VA for family member to use transferred benefits
* A letter, dated 24 August 2011, from the VA denying him transferability because the Army did not indicate he was approved for such benefit
* A printout of Post-9/11 Transferability Policy Quick Reference 
* An incomplete TEB transfer request
* A printout of how to submit a transfer request

8.  On 13 April 2012, an advisory opinion was obtained from the Office of the Chief, Education Incentive Branch, HRC, Fort Knox, KY.  The advisory official recommended disapproval of the applicant's request.  The official stated that Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, § 3020 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.  Based on the details below, the official did not recommend administrative relief for the applicant unless he can provide evidence showing he attempted to transfer benefits prior to leaving military service, showing a system failure, and/or he was given false information by a reliable source about the rules of transferring education benefits.

9.  The advisory official explained the rationale for recommending disapproval and addressed the following issues:  possible Defense Enrollment Eligibility Reporting System (DEERS) and TEB online database/system failure, possible inadequate counseling, and program specific issues.

10.  Regarding [Applicant's] statements about the TEB process, possible DEERS and TEB online database/system failure, and possible inadequate counseling by an education counselor at Fort McPherson, GA, the following information is provided:

	a.  Regarding the TEB process:  

		(1)  [Applicant] provided a copy of the TEB webpage, dated 8 June 2011, that shows he accessed the TEB webpage; however, the document shows no submission occurred.  For instance, the document shows no increase in months from zero months to any family member, nor does it show his agreement of the ten statements (no check marks in blocks) on the TEB request webpage.  When TEB historical information is questioned or lacking by the service member, this office usually advises the service member to seek TEB historical information through the DMDC.  However, since this office had had numerous discussions/emails with him, on 19 December 2011 this office made a request to the DMDC on behalf of [Applicant].  DMDC ran a historical file check on [Applicant's] access to TEB; DMDC confirmed that [Applicant] accessed the TEB webpage on 8 June 2011 at 1:57PM and 3:10PM, but did not see any indication [Applicant] submitted a TEB request (e.g. no change in number of months and absence of agreement to ten statements).  When a TEB request is submitted, the next screen a service member will see is a screen stating:  (1) the request has been submitted, and (2) will advise the service member to click on the "return to editing" button to return to the TEB Submission page for printing.  When the service member returns to the TEB Submission page, the service member's status will now show "submitted" (if the request had been submitted).  Again, the TEB online database advises a SM to print the document following submission.

		(2) [Applicant] made statements via telephone and email to this office in December 2011 and January 2012 that he had saved an electronic copy of the TEB submission in his computer.  However, he stated this computer was reimaged and no longer has the electronic copy of the TEB submission.  The TEB office encouraged him to seek assistance from the Information Technology (IT) personnel who may be able to 'find' the document in question.  No additional paperwork was provided by [Applicant] regarding the document on his computer.

	b.  Regarding possibility of system failure:  [Applicant] suggests his files at DMDC were in flux between the Active Component and the Reserve Component on 8 June 2011. 

		(1)  On 9 March and 21 March 2012, this office contacted DMDC TEB IT point of contact to verify possible system failures based upon [Applicant] statement in paragraph 4 of his application to the Army Review Boards Agency (ARBA) case regarding possible database errors, "…the automated systems experienced an electronic collision because my records are carried in both the Reserve and Active Component systems.”  DMDC TEB IT point of contact reviewed [Applicant's] file and stated, "While it is possible that there may have been an issue with his DEERS Personnel records, this would not have affected his potential to submit a TEB request."  The TEB online database would have accepted the submission and changed [Applicant's] TEB status from blank to "submitted."  The document [Applicant] provided in this case shows the TEB status as blank.  

		(2)  Additionally, another DMDC official from the DMDC DEERS IT office was asked to review [Applicant's] file; this official stated, "I see no indication of any data issues at the time that the member indicates that he submitted his TEB request."  

		(3)  Lastly, this office contacted the Officer Sanctuary/Retirement, Mobilization Support Branch, at the U.S. Army Human Resources Command (HRC-OPD-M) asking for their review and comment on [Applicant's] statement in paragraph 4 of his ARBA case regarding possible system errors, "…I was carried in the Active Army system but also carried as available in the IRR in the Reserve Army system.  I had to provide my retirement orders to my Reserve Branch Manager to correct my records in DEERS.  This records conflict caused the rejection of my TEB…"  HRC-OPD-M point of contact reviewed [Applicant's] statement and his retirement package, and stated the following:

In reference to attached memorandum on [Applicant], paragraph 4, the Sanctuary Team of the Mob Support Branch (MSB) provides the Sanctuary and Retirement memo to a Soldier upon their request for Sanctuary (which [Applicant] requested for and was eligible for Sanctuary on 7 February 2011).  The Sanctuary orders and retirement memorandum are given to the Soldier in order for the Soldier to process through the Transition center (with Sanctuary orders) and Retirement Service Office (with Retirement Memorandum).  No actions, positive or negative, were completed by the Sanctuary Team, MSB that would have interfered with any DEERS eligibility issues.  We have no DEERS in-put access.

		(4)  Based upon the above statement by HRC-OPD-M, no actions taken by their office would have influenced the DEERS system, nor the TEB online database.  HRC-OPD-M is the same office that provided retirement orders to [Applicant].

	c.  Regarding possibility of inadequate counseling:  [Applicant] made statements via telephone and email to this office in December 2011 and January 2012 that he had received inadequate counseling from the Fort McPherson Education Center.  [Applicant] has not provided documentation to this office regarding the counseling nor the counselor’s statement regarding inaccurate information.

11.  Regarding the specific requirements of this program:

	a.  A Soldier must be currently on Active Duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  His last day in service was 31 July 2011.  He would have been eligible to transfer the benefit if he transferred before he left service.

	b.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  He had more than 25 years of service upon his retirement effective 1 August 2011, so he was eligible to transfer to either his spouse or children (if he completed the request before leaving military service).

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child must be enrolled in DEERS and be eligible for DEERS benefits.  Children lose eligible family member status upon turning age 21, or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS).  Wards of state are not eligible for the benefit.  

Once the benefits are transferred, children may use the benefit up to the age of 26.  The TEB online database shows he had 3 eligible family members enrolled in DEERS.  He was eligible to transfer to the following family members:  La----- (spouse), An--- (child), and La---- (child).  He states he completed the request in the TEB online database; however, he has no documentation supporting his claim of submission, system failure, or inadequate counseling.

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If he had transferred his benefits prior to leaving military service he would not have incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.

	e.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  There is no evidence of an adverse action in his record.  He received an honorable discharge.

	f.  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, DOD, and VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits.  His last day in the service was 31 July 2011, which was not within 90 days after the program’s implementation.

	g.  A Soldier must initially request to transfer benefits on the DOD's TEB online database.  The TEB online database was operational 29 June 2009.  Once approved in the TEB online database by the Soldier’s service, the approval information is automatically relayed for VA access.  The respective family member must then submit an application for VA education benefits, VA Form
22-1990e, to request to use the benefits.  He submitted a copy of his daughter La----'s claim to the VA (VA-Form 22-1990e), dated 9 August 2011, and the VA's disapproval for the Post-9/11 GI Bill Transfer of Entitlement, dated 24 August 2011.

	h.  Changes to the amount of months allocated to family members can be made at anytime, to include once the service member leaves military service, provided the service member allocates at least one month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by him to transfer any benefits.

	i.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by VA.  Evidence was provided by the applicant that his daughter made a previous claim to VA, dated
9 August 2011.  If he is granted relief the beginning date for his daughter to use the transferred benefits will be 9 August 2011, the date the claim was submitted to VA (subject to verification by VA upon approval).

12.  The applicant provided a rebuttal on 12 May 2012, wherein he stated:

* He met the eligibility requirements for this program
* His efforts to transfer the benefits are documented and were prior to his retirement
* The system failed to process his application
* DOD did not provide him with any recourse when there is a system failure
* The DOD TEB website is not updated
* The information at the transition center are not adequate
* Other Soldiers experienced a similar problem
* He has sworn statements from eyewitnesses who confirm his submission
* He addressed the issue as a soon as he realized there was a problem

13.  With his submission, he provides incomplete sworn statements from his wife and daughter who state they saw him open the TEB website and clicking on the word "submitted."

14.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of the individual’s 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.
15.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

16.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence that shows the applicant submitted a request to transfer the education benefits to his family member(s) while in an active status.  HRC officials went to a effort to confirm if and when the applicant submitted a request to transfer the benefits on the TEB website.  However, no evidence of a submission was found. 

2.  The DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly a year after the program was implemented.

3.  The applicant's service and his sincerity are not in question.  However, as the applicant had been on active duty since the program was implemented in August 2009, and over 2 years after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x___________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20120002356



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002356



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1