IN THE CASE OF:	

		BOARD DATE:	    23 January 2014

		DOCKET NUMBER:  AR20130006659 


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

2.  He states his daughter was denied education benefits under the Post-9/11 GI Bill.  When he transferred the benefits in 2010 prior to leaving the Army, he was told the benefits would be ready to be used when they were needed.  He was never informed of any service obligation and he never received a document or order that indicated this information.  There was no counseling in out-processing so it was impossible for him to be able to fulfill an obligation he never knew existed.  

3.  He provides:

* Statement from daughter
* Letter from the Department of Veterans Affairs addressed to his daughter
* Post-9/11 GI Bill instructions 

CONSIDERATION OF EVIDENCE:

1.  On 8 March 1993, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant and he executed an oath of office.  He was appointed as a Reserve commissioned officer on 20 April 1995 in the rank of first lieutenant and he executed a second oath of office. 

2.  Orders A-06-003711, dated 7 June 2001, published by Department of the Army, U.S. Total Army Personnel Command (currently known as U.S. Army Human Resources Command) show he was ordered to active duty with a report date of 14 September 2001.  These orders indicate his active duty commitment was 9 years.  

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 7 July 2001.  He was honorably discharged on 30 September 2010 under the provisions of Army Regulation 600-8-24 (Officers Transfers and Discharges), paragraph 3-5 by reason of miscellaneous/general reasons in the rank of lieutenant colonel.  He completed 9 years, 2 months, and 24 days of active duty service during the period covered by the report.  

4.  He provided a letter from his daughter who stated:

	a.  she was denied educational benefits under the Post-9/11GI Bill and disagrees with this decision. 

	b.  the reason given for denial is that her father had an obligation that lasted until 2014, but he was discharged in 2010.  When the benefits were being transferred, no one made her father aware of this condition.  They were only given instructions on how to receive the benefits and nothing was given that indicated a service obligation.  

	c.  they were told that once her father's obligation in 2010 was fulfilled, the benefits would be effective after transfer.  They were shocked to find out that the benefits were denied.  If her father had been aware of the 2014 obligation, he would have changed his decision to be discharged.  This lack of crucial information made it impossible for the benefits to be transferred under the right terms.

	d.  she finds it unfair that a misunderstanding should cost her educational benefits to help her attend an extremely expensive university.  Her father fulfilled a lengthy obligation to this country, including deployment, and the denial of benefits should be reevaluated.  

5.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.  This benefit is meant as a recruiting and retention tool.


6.  Public Law 110-252, section 3319 provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members also must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization) and must have received an honorable discharge at the conclusion of active duty service.

7.  The program guidance stipulates that if a service member becomes retirement eligible during the period 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732, as follows:

	a.  service members eligible for retirement on 1 August 2009 – no additional service is required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he applied for and the Army approved transferring his educational benefits under the 
Post-9/11 GI Bill to his daughter prior to his retirement from active duty on 30 September 2010 has been carefully considered.

2.  Although he contends that he was never informed of any service obligation, the DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  Therefore, it does not seem probable that he was unaware that this incentive is meant to act as a retention tool and that he would be given this benefit without any additional service obligation.  

3.  Based on DOD policy, an individual is eligible to transfer educational benefits to eligible family members after 1 August 2009 who at the time of the approval of the individual's request to transfer entitlement to educational assistance 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.  

4.  The applicant was discharged from active duty prior to fulfilling the active service obligation.  Regrettably, his daughter is ineligible to receive his 
Post-911/GI Bill benefits.  

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)                                         AR20130006659





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ABCMR Record of Proceedings (cont)                                         AR20130006659



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