IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130004177 


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 entitlement to transfer his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states, in effect, that he was erroneously flagged and unable to transfer his education benefits to his wife before his retirement.  Further, his chain of command was not aware of the flag or the reason for the flag.  He contends that he received his retirement packet prior to the flag being removed; however, when he returned to the Education Center to complete a new transfer request he was told he was not eligible to transfer benefits due to his retirement status.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years and 17 days of active federal service, the applicant was honorably retired on 31 October 2012.

2.  His Enlisted Record Brief shows he was removed from the promotion selection list and flagged on 25 October 2011.  This flag was removed on 8 June 2012 as an erroneous flag (per eMILPO Help Desk).

3.  A review of his Army Military Human Resource Record (AMHRR) contains a DA Form 669 (Army Continuing Education System Record) printed on 27 June 2012.  This document shows, in pertinent part, the following entries on:

* 29 June 2011 - he met with an education counselor to discuss his desire to switch from the Montgomery GI Bill (MGIB) to the Post 9/11 GI Bill; he was referred to the www.gibill.va.gov website to complete a Department of Veterans Affairs (VA) Form 22-1990 (Application for VA Education Benefits)
* 1 November 2011 - he was notified by email that his education account was placed on hold; the note references his suspension of favorable action flag 
* 17 April 2012 - the education counselor noted that he assisted the applicant with Post 9/11 GI Bill transferability requirements and referred him to his Post Retention noncommissioned officer
* 11 June 2012 - the applicant was notified by email that his flag hold was removed 
* 27 June 2012 - the applicant received a general VA education benefits counseling which included information regarding the active duty MGIB, Post 9/11 GI Bill transferability requirements, mandatory separation counseling, and VA benefits available under an honorable discharge

4.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further this 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.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.

5.  On 22 June 2009, the DoD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual is 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, in pertinent part, 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 service or 20 qualifying years of Reserve service.

6.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for the administration of the program.  A Soldier must initially request to transfer benefits on the DoD's TEB online database.  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 educational benefits (VA Form 22-1990e) to request to use the benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests entitlement to transfer his educational benefits to his dependents under the TEB provision of the Post-9/11 GI Bill.

2.  The available evidence shows he was fully eligible to transfer his education benefits under the TEB prior to retirement but did not do so prior to his retirement on 31 October 2012.

3.  He contends that an erroneous flag initially prevented him from transferring his education benefits.  However, the flag was removed from his education record on 11 June 2012 and he was notified on that date that it was removed.  Further, the record shows he was briefed throughout his retirement processing regarding the criteria to transfer his education benefits under the Post 9/11 GI Bill, to include providing him the VA website address and instructing him to complete an application for VA education benefits.

4.  The program was implemented in July 2009 and he served on active duty over 3 years after this program was implemented.  Although he was clearly briefed in regards to the TEB under the Post 9/11 GI Bill, there is no evidence showing that he attempted to transfer the benefit prior to leaving active.

5.  The law requires a member to be in an active status at the time he/she requests the transfer.  A change to this law is not within the purview of this Board.  Therefore, he is not entitled to 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)                                         AR20130004177





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ABCMR Record of Proceedings (cont)                                         AR20130004177



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