IN THE CASE OF:
BOARD DATE: 26 November 2014
DOCKET NUMBER: AR20130005704
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 his educational benefits to his family members under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was not advised to complete the transfer while still in the armed forces.
3. The applicant provides Orders 096-858 transferring him to the Retired Reserve on 29 May 2011 and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).
CONSIDERATION OF EVIDENCE:
1. Having had prior enlisted service, the applicant enlisted in the Tennessee Army National Guard (TNARNG) on 30 May 2002. He served through multiple extensions, in a variety of assignments, including periods of mobilization.
2. On 6 April 2011, the TNARNG published Orders 096-858 transferring him to the Retired Reserve effective 29 May 2011. Accordingly, he was honorably discharged from the TNARNG and transferred to the Retired Reserve on 29 May 2011. His NGB Form 22 shows he completed 9 years of ARNG service during this period of enlistment.
3. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, § 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 currently on Active Duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).
b. A Soldier must also 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 family members. To be considered an eligible family member the spouse or child must be enrolled in Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible family member status upon turning age 21, or at marriage. Eligible family member 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 also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.
e. A Soldier must also 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 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 education benefits.
g. 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 Soldiers service, the approval information is automatically relayed for VA access. The respective family member 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 family members can be made at anytime, to include once the service member leaves 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.
4. 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 individuals request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill; and meets various requirements.
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, attempted to transfer the benefit prior to leaving military service, and/or he was given false information by a reliable source about the rules of transferring education benefits.
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 retired over 2 years after the program was implemented.
3. The applicant's service and his sincerity are not in question. However, as the applicant had been on active duty or in the Selected Reserve since the program was implemented in August 2009, and nearly 2 years (he retired in May 2011) after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner. There is no evidence he exercised due diligence. There is neither an error nor an injustice in the applicant's transfer of benefits processing.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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) AR20130005704
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ABCMR Record of Proceedings (cont) AR20130005704
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