IN THE CASE OF:	. 

		BOARD DATE:	    27 March 2014

		DOCKET NUMBER:  AR20130013222 


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 spouse.

2.  The applicant states his spouse is attempting to attend school and e-benefits indicate there is an eligibility issue.  Upon his separation from the Army he was not informed of the need to transfer his education benefits to his spouse while still serving on active duty. 

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Having had prior active and Reserve service, the applicant enlisted in the Regular Army, on 27 August 2007, and he was promoted to the grade/rank of sergeant (SGT)/E-5 on 1 December 2009.

2.  In anticipation of his upcoming medical retirement, he underwent a pre-separation briefing on 31 March 2012 wherein he checked the "No" block in item 13a (Education Benefits) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) to indicate he declined 
preseparation counseling on education benefits.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  On 19 May 2012, he was retired by reason of temporary disability and placed on the temporary disability retired list in his retired rank of SGT.  He completed a total of 6 years, 7 months, and 20 days of creditable active service and a total of 10 years, 3 months, and 28 days of total service.

4.  Public Law 110-552 establishes legal limitations on the transferability of unfunded Post 9/11 GI Bill benefits and limits eligibility to 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 have 6 years of eligible service to transfer the benefits to a spouse and 10 years to transfer the benefits to eligible children.  

	b.  A Soldier must have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System.  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.  

	c.  A Soldier 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, Department of Defense (DOD), and Department of Veterans Affairs (DVA) 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.  

	d.  A Soldier must initially request the transfer through the DOD TEB online database.  The TEB database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the DVA.  The respective dependent must then submit the application for VA education benefits.  

	e.  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 zero months, and subsequently leaves military service they are not authorized to transfer unused benefits.

5.  On 22 June 2009, 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 4 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 from 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be allowed to transfer his Post-9/11 GI Bill educational benefits to his spouse because he was unaware of the requirement to do so prior to his retirement.

2.  The evidence of record shows the applicant was serving on active duty until his retirement on 19 May 2012.  He would have been eligible to transfer any unused education benefits to his spouse; however, he did not do so while he was serving on active duty.  He had indicated that he did not desire preseparation counseling on education benefits.

3.  Notwithstanding his sincerity, 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, he did not retire until nearly 3 years after the program was implemented.

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 while serving on active duty as required by law, there is an insufficient evidentiary basis for granting 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)                                         AR20130013222



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013222



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1