IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130008780 


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

2.  He states at the time of his retirement, the Post-9/11 GI Bill was still being implemented.  He adds he transferred his benefits to his wife who has since decided not to return to school.  He states he now wishes to transfer his benefits to his daughter.  He offers he went to the MilConnect website and was informed that because he had not placed her as a beneficiary before he retired, he could no longer do so.  He maintains that he was never told this prior to his retirement and he assumed he could transfer his benefits when necessary.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  The applicant was appointed as a Reserve commissioned officer on 20 May 1988 and he entered active duty on 15 September 1988.  He served in a variety of assignments and he attained the rank of lieutenant colonel.  He was honorably retired on 31 March 2010 and credited with completing 21 years, 6 months, and 16 days of active duty service.

3.  The applicant's record contains a DD Form 93 (Record of Emergency Data) which identifies his daughters' dates of birth as 3 October 1995 and 6 October 2001.

4.  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.  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 (VA) is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  A Soldier must currently be 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.  

	b.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children.  

   c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  Eligible dependent 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); the child will lose eligibility status upon less than full-time status or graduation.  Wards of the State are not eligible for the benefit.  Once the benefits are transferred, children may use the benefits up to age 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 have no adverse action flag and have an honorable discharge to transfer the benefits.  

	f.  The Army, the Department of Defense, and the 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 educational benefits.  

	g.  A Soldier must initially request to transfer benefits on the Department of Defense's 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 VA access.  The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits.  

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave 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.  

5.  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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

6.  As an exception to policy, the Deputy Chief of Staff, G-1 determined that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements to transfer their benefits prior to leaving the military.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer benefits to his eligible dependents; however, based on his own admission, he only transferred those benefits to his wife believing that he could add his daughter at a later date as necessary.  

2.  The DOD and the Army conducted massive public campaigns that generated major communications on the TEB through military, public, and social media venues.  Although he maintains that he was never told he needed to list his daughter as a beneficiary before he retired, he has not provided sufficient evidence which shows he was deprived of information broadly disseminated through the public campaigns.  

3.  Even though the Office of the Deputy Chief of Staff, G-1 determined that individuals should not be granted relief based on unawareness of the law, program, rules, or procedures this office later determined, as an exception to policy, that individuals who left the service during the implementation phase (first 90 days of the program) could be granted relief.  The applicant's last active status date was 31 March 2010 which was well beyond 90 days of the program's implementation.

4.  In view of his wife's decision not to return to school, it is understandable that he now desires to transfer his education benefits to his daughter; however, based on the law, he is no longer eligible to transfer benefits to her under the TEB provision of the Post-9/11 GI Bill.

5.  Accordingly, there is no basis for granting his request.  

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)                                         AR20130008780





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ABCMR Record of Proceedings (cont)                                         AR20130008780



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