BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130006463 


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, as an exception to policy, correction of his record to show he transferred his education benefits to his spouse under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

	a.  He was unable to transfer his educational benefits to his spouse due to misinformation and the lack of information given to him prior to retirement.  The Department of Veterans Affairs (VA) notified him prior to his retirement that he should apply for transferred benefits after his retirement.  He has now been told he should have applied prior to his retirement.  Because he did not receive the proper information, the VA cannot pay the benefits to him, thereby removing his earned benefits, which is both an error and an injustice.

	b.  He spoke with the VA, what he believes to be the proper authority, for understanding his education benefits and transferability prior to his retirement from active service.  The VA representative with whom he spoke made an error in assuming information about him that was incorrect; that he was eligible for transferability.  At no time was he counseled on transferability eligibility and whether or not he was eligible by Department of Defense (DOD) employees including his VA counselor at Fort Knox, KY.

	c.  Although he can understand that the error was one of omission rather than commission, it is still wrongfully depriving him of using (in this case transferring) educational benefits that he has earned.  There is no waiver available through the VA Education Office.  Approval by this Board is his only recourse.  He has no ability to work through other options to regain transferability eligibility because he has retired from active service.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Military History Summary.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant enlisted in the Army National Guard (ARNG) on 28 August 2003.  He was on active duty from 13 September 2011 until he retired by reason of sufficient service for retirement on 31 January 2013 at Fort Knox, KY.

2.  On 22 June 2009, the 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 four 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 service or 20 qualifying years of Reserve service.

3.  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 was fully eligible to transfer his education benefits to his authorized family members under the TEB provision of the Post-9/11 GI Bill prior to retirement, but he did not do so.  The program was implemented in July 2009 and he retired on 31 January 2013.  Prior to retirement, there is no evidence of record and he did not provide sufficient evidence to show he properly applied for the transfer of benefits while on active duty or in the Selected Reserve and/or he was given false information by a counselor about the rules of transferring education benefits.

2.  The DOD, VA, and the Army conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible family member; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The applicant's service and his sincerity are not in question.  He continued to serve over three years after the TEB provision of the Post-9/11 GI Bill was implemented.  Therefore, he had sufficient time to become aware of the policies and submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  While there may have been some confusion during the early stages after the implementation, he retired well after the program was implemented.

4.  There is neither an error nor an injustice in his transfer of benefits processing.

5.  In view of the foregoing, there is no 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)                                         AR20130006463



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006463



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1