IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120010287 


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 education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to her family member members.

2.  The applicant states:

	a.  Prior to retirement and during outprocessing from active duty at Fort Bliss, TX, no one informed him of the option to transfer the benefit.  He was informed by another Soldier that it needed to be done while still on active duty.  He went on the TEB website between 9 April and 28 May 2010 and when he logged in, his Defense Enrollment Eligibility Reporting System (DEERS) came up and he transferred 18 months to each of his remaining dependent children living at home.  He did this with help from a Veterans Affairs service officer.  He was told to submit the application and wait.  

	b.  After being mobilized for 6 consecutive years, he entered the workforce with a company that has a busy schedule.  It was not until his wife attempted to enroll his son into the 2012/2013 college program that they discovered his education benefit was not transferred. 

3.  The applicant provides:

* Email from the VA service representative who helped him
* Letter from the U.S. Army Human Resources Command to his Member of Congress
* Letter from the VA to his Member of Congress
* Letter from the National Guard Bureau to his Member of Congress

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 19 June 1962.  

2.  Having had prior enlisted service in the Army National Guard, the applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 28 May 2003.  He held military occupational specialty 88M (Motor Transport Operator).

3.  He entered active duty on 28 April 2004 for various reasons, including a temporary tour of active duty and/or active duty for operational support.

4.  On 29 September 2005, the U.S. Army Human Resources Command 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.

5.  He was honorably released from active duty on 25 May 2010.  He was transferred to the Selected Reserve of the USAR.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years and
28 days of active service during this period.

6.  On 12 August 2010, the 88th Regional Support Command published official orders transferring him from the Selected Reserve to the Retired Reserve effective 1 September 2010.  

7.  He submitted four documents:

	a.  An email, dated 22 September 2011, from a VA service representative who states the applicant contacted him in April 2010 in an attempt to transfer his benefit.  He never received a confirmation of the transfer from the Department of Defense.  He is now retired and is no longer eligible to transfer the benefit.  

	b.  A letter, dated 13 October 2011, from the VA to the applicant's Member of Congress advising him that the applicant retired from the USAR on 1 September 2010.  He was eligible for the TEB option.  However, as of 7 October 2011, the DOD database indicates he had not been approved to transfer the benefit to any of his dependents. 


	c.  A letter, dated 17 November 2011, from the NGB to the applicant's Member of Congress advising him that the applicant served in the ARNG from 10 January 1985 to 28 May 2003.  He later served with the USAR from 29 May 2003 to 31 August 2010.  He retired on 1 September 2010.  He was not eligible to transfer the benefit while serving in the ARNG.  

	d.  A letter, dated 23 February 2012, from HRC to the applicant's Member of Congress advising him that the applicant voluntarily transferred from the Selected Reserve to the Retired Reserve on 1 September 2010.  The TEB database does not reflect he transferred education benefits prior to his transfer to the Retired Reserve.  The Post 9/11 GI Bill benefits are available to him to utilize if he chooses; however, he does not meet the criteria for the transfer to his family members since he is no longer on active duty or in the Selected Reserve. 

8.  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.

9.  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.


10.  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.  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 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.  

   e.  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.  

   f.  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 dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to request to use the benefits.  
   g.  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 his education benefits to his family member(s) while on active duty or in the Selected Reserve.  It appears he communicated through his Member of Congress with HRC, the NGB, and the VA in an effort to confirm if and when he 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, he did not retire well after the program was implemented.

3.  The applicant's service and his sincerity are not in question.  However, as he had been on active duty and/or in the Selected Reserve since the program was implemented in August 2009 and 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.  It is reasonable to believe he 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 his case.

4.  The requirement to transfer the benefit while 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, this Board 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 on active duty and/or in the Selected Reserve, 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)                                         AR20120010287



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ABCMR Record of Proceedings (cont)                                         AR20120010287



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