IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120011637 


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, in effect, correction of his records to show he elected to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
 
2.  The applicant states:

	a.  he is currently assigned to the Retired Reserve as of 9 September 2010.  He served in Operation Iraqi Freedom from November 2007 to May 2009.  While in Iraq he had limited access to the internet but he recalls seeing a message to submit TEB forms.  He informed his unit administrator that he wanted to add his spouse and two sons to the education benefits.  It was his understanding that this was all he had to do.  It has now been brought to his attention that this was incorrect.

	b.  he believes there was a misunderstanding on both ends since he had never had any issues or miscommunication with his home station unit on anything prior to this matter.  After many phone calls and research, his unit administrator informed him that his TEB form cannot be found.  Some of his bags and packages were lost in transit. 

	c.  he does not recall the TEB being a topic among the many Department of Veterans Affairs (DVA) benefits that were covered with Soldiers while being out processed at Fort Benning, GA.

	d.  in March 2012, he was inquiring into using the TEB benefits for his son as he is entering college this fall.  He was informed that the transfer of benefits was not processed and he needed to complete a DD Form 149 (Application for Correction of Military Records).        
 
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Active duty orders
* Amendment orders
* Discharge orders
* Reassignment orders
* Notification of Eligibility for Retired Pay at Age 60

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having completed over 19 years in the U.S. Army Reserve (USAR), the applicant was ordered to active duty on 17 November 2007 in support of Operation Iraqi Freedom.  He served in Iraq from 9 December 2007 to 19 April 2009 and he was released from active duty on 11 May 2009.  He was assigned to the Retired Reserve effective 9 September 2010.  

3.  During the processing of this case an advisory opinion was obtained from the Chief, Education and Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, who states, in summary:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  The law 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.

	b.  A Soldier must be currently 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).  The applicant's last day in service was 8 September 2010.  He would have been eligible to transfer the benefits if he transferred them before he left the service.  

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse or at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 26 years of service upon his transfer to the Retired Reserve, so he was eligible to transfer benefits to either his spouse or children as long as the dependents were enrolled in Defense Eligibility Enrollment Reporting System (DEERS) (if he completed the request before leaving military service).

	d.  A Soldier may only transfer benefits to eligible dependents.  He had three  eligible dependents enrolled in the DEERS.  He did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer benefits prior to leaving service.

	e.  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 the applicant transferred his benefits prior to leaving military service he would not have incurred an additional service obligation.

	f.  A Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant's record.  

	g.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left military service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), and DVA 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 military service was 8 September 2010 which was not within 90 days after the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the DOD TEB online database.  The TEB online database was operational on 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for DVA access.  The respective dependent must then submit an application for DVA educational benefits to request to use the benefits.  The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	i.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a Soldier leaves military service, provided the service 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.  The TEB website shows no action was taken by the applicant to transfer any benefits.

	j.  The DVA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the DVA.  No evidence was provided by the applicant to show his dependents made a previous claim to the DVA.  If the applicant is granted relief, the beginning date for his dependents to use the transferred benefits will be the date relief is granted unless previous specific claims were submitted to the DVA (verified by DVA upon approval).

4.  The advisory official does not recommend administrative relief for the applicant because he did not provide evidence showing he attempted to transfer benefits prior to leaving military service and/or he was given false information by a reliable source about the rules for transferring educational benefits.

5.  On 9 August 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.  

6.  On 22 June 2009, 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 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 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.

7.  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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he does not recall the TEB being a topic among the many DVA benefits that was covered with Soldiers while being out processed at Fort Benning, GA.  However, the Army, DOD, and DVA 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.  

2.  His remaining contentions were carefully considered.  However, there is no evidence of record and he provided no evidence which shows he transferred his Post 9/11 GI Bill benefits to his dependents prior to his transfer to the Retired Reserve on 9 September 2010.  Regrettably, there is no basis for granting the 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)                                         AR20120011637





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ABCMR Record of Proceedings (cont)                                         AR20120011637



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