IN THE CASE OF:	  

		BOARD DATE:  27 March 2014

		DOCKET NUMBER:  AR20130013018 


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

2.  The applicant states he has been deployed three times since 9/11, in 2002, 2007, and 2009.  He was not informed of the requirement to state his intentions to transfer his education benefits to his children each time [his active duty] orders were terminated.  In August 2011, he called the "GI Bill office" to inquire about the process to transfer his education benefits to his children.  He was told it was too late and he should have done so when he terminated his orders.  He subsequently inquired if he had any recourse and was told he could file an appeal [with the Army Board for Correction of Military Records (ABCMR)]. 

3.  The applicant provides no additional evidence.

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 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.  Having had prior active service, the applicant was appointed as a Reserve captain in the Army National Guard and executed an oath of office on 27 July 1983.  He served in staff and leadership positions and he was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 in the U.S. Army Reserve (USAR) on 6 May 2001.

3.  Orders 07-227-00003, dated 15 August 2007, issued by Headquarters, 84th Training Command, Fort McCoy, WI, released him from his current assignment and transferred him to the Retired Reserve in the rank of LTC effective 1 July 2007 by reason of maximum authorized years of service.  He had 30 years, 2 months, and 5 days of qualifying years for a non-regular retirement as of that date.

4.  He was ordered to active duty as a voluntary retiree recall and entered active duty on 30 November 2008.  He was honorably released from active duty on 29 November 2009 and he was transferred to the Retired Reserve.  

5.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible family member 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 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 duty or 20 qualifying years of Reserve service.

6.  A member of the Armed Forces is eligible to transfer education benefits to family members if they:

	a.  have eligible family members enrolled in the Defense Enrollment Eligibility Reporting System (DEERS).  Children lose eligible family member status upon turning 21 years of age, 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;

	b.  initially requests the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA).  Once the benefits are transferred, children may use the benefit up to the age of 26;

	c.  changes to the amount of months allocated to dependents can be made at any time, 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 they are not authorized to transfer unused benefits; and

	d.  a Soldier not serving on active duty or as a member of the Selected Reserve and subsequently requests the transfer of unused benefits to family members should not be granted relief based on unawareness of law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, DOD, 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.  

7.  Public Law 110-252, section 3020, 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 Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be allowed to transfer his Post-9/11 GI Bill educational benefits to his children because he was unaware of the requirement to do so while he was serving on active duty.

2.  The evidence of record shows the applicant was serving on active duty as a voluntary retiree recall USAR LTC from 30 November 2008 until he was transferred back to the Retired Reserve on 30 November 2009.  This was 120 days after the implementation of the program and 5 months after the TEB online database was operational.  He would have been eligible to transfer his unused education benefits to any eligible family members enrolled in DEERS; however, there is no evidence that he did so while he was serving on active duty.

3.  Notwithstanding his sincerity that he was not aware of the requirements to transfer his education benefits prior to his transfer back to the Retired List in November 2009, DOD, the 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.

4.  The requirement to transfer the benefits while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  As the applicant failed to transfer the benefits to his family members while in an active status, as required by law, there is an insufficient evidentiary basis for granting him 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)                                         AR20130013018





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ABCMR Record of Proceedings (cont)                                         AR20130013018



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