BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120007756 


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 adjustment of the date he was transferred to the Retired Reserve so he can transfer educational benefits under the Transfer of Educational Benefits (TEB) provisions of the Post-9/11 GI Bill to his family members.

2.  The applicant states:

* the requirement that he should seek permission to transfer these benefits through the Department of Defense (DOD) was never explained to him
* he recently contacted the Department of Veterans Affairs (VA) regarding the transfer but he was told he is no longer eligible to transfer this benefit
* he served faithfully for 20 years and shut down his own law practice twice to serve on active duty
* these benefits were earned and as far as he is concerned were vested

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the Mississippi Army National Guard (MSARNG) and he executed an oath of office on 23 February 1990.  He served in a variety of assignments, including periods of mobilization, and he attained the rank of colonel (COL).

2.  On 2 March 2010, the MSARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

3.  On 12 May 2010, the MSARNG published orders discharging him from the ARNG and transferring him to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)).

4.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 20 years, 3 months, and 9 days of total service for pay.

5.  On 28 July 2011, the U.S. Army Human Resources Command, Fort Knox, KY, published orders transferring him to the Retired Reserve, effective 1 December 2011.

6.  During the processing of this case, on 23 July 2012, an advisory opinion was obtained from the NGB.  The advisory official recommended disapproval of the applicant's request.  The official stated:

	a.  Public Law 110-252, as amended by Public Law 111-377, identifies the qualification to receive the Post-9/11 GI Bill, one of which is that the service member must have performed on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill.  Public Law 110-252 establishes legal requirements on the transferability of 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.

	b.  the ARNG, DOD, and the 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.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers who left service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving the military.  The Soldier retired well over 90 days after program's implementation.

	c.  In a memorandum, dated 4 May 2012, the ARNG Personnel, Programs, Resources, and Manpower Division (PPRMD) indicate their office reviewed the applicant's available records and recommends administrative relief.

	d.  The State concurs with the recommendation [to deny relief].
7.  On 24 July 2012, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 6 August 2012, the applicant submitted a rebuttal wherein he stated:

* The ARNG PPRMD recommends administrative relief and the State concurred with this recommendation, meaning the NGB's recommendation goes against the weight of the input it gathered
* Neither the massive public campaign nor the major communications reached his ears
* There was no briefing, roster, or any evidence that he was briefed on this requirement
* The 90-day exception is an acknowledgement of the likelihood of incomplete dissemination of the rule regarding time limits
* The 90-day exception is short
* He made specific points to seek out information about the GI Bill benefits but no information was communicated to him

8.  Additionally, in a letter from the applicant's Member of Congress (MC), dated 21 August 2012, the MC states:

* The applicant was never counseled regarding the NGB's 90-day rule
* The State ARNG even acknowledged they were not aggressive in disseminating this information

9.  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.
10.  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.

11.  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 meets other criteria. 

12.  Section 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.  

	a.  A Soldier must be on Active Duty or a member of the Selected Reserves at the time of transfer of education 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 education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  

   c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21, or at marriage.  Eligible dependent 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.  

   d.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  

   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 the 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.  

   g.  A Soldier must initially request to transfer benefits on the Department of Defense’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 dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to request to use the benefits.  

   h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave 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.  

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.  It appears the State and the NGB went to an 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 well after the program was implemented.

3.  The applicant's service and his sincerity are not in question.  However, as the applicant had been in the Selected Reserve (in the ARNG and the USAR) since the program was implemented in August 2009 he had plenty of time to submit his application and/or to verify his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  The applicant had access to information regarding the requirement to request TEB through the DOD TEB online database.  He did not do so.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

4.  The requirement to transfer the benefit while a member is in on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  Additionally, the ABCMR does not correct records solely for the purpose of establishing entitlement to other programs or benefits.  As the applicant failed to transfer the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting his 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)                                         AR20120007756



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ABCMR Record of Proceedings (cont)                                         AR20120007756



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