IN THE CASE OF:
BOARD DATE: 17 January 2013
DOCKET NUMBER: AR20120010903
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 to his son under the Transfer of Educational Benefits (TEB) provision of the
Post-9/11 GI Bill.
2. The applicant states the eligibility requirements regarding who was eligible to receive his transferred Post-9/11 GI Bill benefits were not explained correctly; therefore, his son was omitted from receiving the educational benefits.
3. The applicant provides:
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 31 January 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2011
CONSIDERATION OF EVIDENCE:
1. The applicant's DD Form 214 and NGB Form 22 show he was retired from the Army National Guard on 31 January 2011 and transferred to the Retired Reserve due to sufficient service for retirement in the rank/grade of sergeant first class/
E-7. He completed 24 years, 10 months, and 20 days of total creditable service for retired pay.
2. On 19 November 2012, an advisory opinion was obtained from NGB in the processing of this case. NGB recommended approval and stated:
a. The applicant did gain eligibility for the Post-9/11 GI Bill benefits before he left military service and did transfer 36 months of educational benefits to one child. However, he did not transfer additional benefits to the remainder of his eligible dependents. NGB recommended full administrative relief in this matter and that the applicant be provided the opportunity to transfer the remainder of his benefits.
b. Public Law 110-252 and its amendment, Public Law 111-377, identify the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill. Public Law 110-252 also established the legal requirements for 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.
c. The applicant's last day of service with the Army National Guard was 31 January 2011. After a thorough review of his available records, it was determined that he was eligible for the Post-9/11 GI Bill and did transfer 36 months to his daughter effective 1 August 2009. The applicant had additional benefits months that were not transferred. At the time he made the transfer, the applicant believed he was transferring benefits to both dependents in assigning the 36 months of benefits.
3. The applicant was provided with a copy of this advisory opinion; he did not respond.
4. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states any member of the Armed Forces on or after 1 August 2009, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and meets other specified service criteria is eligible for the Post-9/11 GI Bill.
5. Public Law 110-252, section 3020, 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 Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent.
6. Changes to the amount of months allocated to dependents can be made at anytime, to include once a service member leaves military service, provided the member allocates at least 1 month of benefits prior to separation. If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.
7. The Army, DOD, and Department of Veterans Affairs (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 educational benefits.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be allowed to transfer his Post-9/11 GI Bill educational benefits to his son because he was unaware that he was eligible to receive the benefits. However, he fails to explain or provide any independent evidence that he was given incorrect guidance.
2. The evidence of record shows the applicant was transferred to the Retired Reserve on 31 January 2011. In August 2009, he transferred 36 months of his educational benefits in TEB to his dependent daughter. At the time, he had one additional dependent child in DEERS, his son. However, he did not transfer any benefits to his son while he was actively serving.
3. Notwithstanding his sincerity, DOD, the 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. It is apparent he was aware of the requirement to request TEB through the DOD TEB online database prior to his transfer to the Retired Reserve as he transferred benefits to one dependent child through the TEB database.
4. The requirement to transfer the benefits while a member is 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. As the applicant failed to transfer the benefits to his son while serving on active duty 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 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) AR20120010903
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ABCMR Record of Proceedings (cont) AR20120010903
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