IN THE CASE OF:	

		BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130014811 


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 an exception to policy to transfer educational benefits to his family members under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* he served in Iraq from 29 April 2007 to 1 April 2009
* he was injured and was medically evacuated to Walter Reed Army Medical Center and was released on 6 September 2009
* he was told he qualifies for the Post 9-11 GI Bill benefits and he believes he meets the qualifications

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Regular Army commissioned officer and executed an oath of office on 22 May 1985.  He was honorably discharged from active duty on 30 September 1998.  He completed 13 years, 4 months, and 9 days of active service.   

2.  He was appointed as a Reserve commissioned officer of the Army on 1 October 1998.  He served in a variety of command or staff assignments and he attained the rank of lieutenant colonel (LTC).  
3.  He entered active duty on 25 January 2007 in support of Operation Iraqi Freedom.  He was honorably released from active duty on 6 September 2009. 

4.  On 25 June 2009, the U.S. Army Human Resources Command issued the applicant a Notification of Eligibility for Retired pay at Age 60 (20-Year Letter). 

5.  On 4 October 2011, the 99th Regional Support Command, Fort Dix, NJ, published orders transferring him to the Retired Reserve effective 30 November 2011. 

6.  Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.  

	a.  A Soldier must be currently 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 to eligible children.  

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible family member status upon turning age 21 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 (verified by DEERS).  Wards of State are not eligible for the benefits.  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.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), and 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 DOD TEB online database.  The TEB online database was operational 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 family members can be made at anytime, to include once a member leaves 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.  

	i.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.  

7.  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.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible to transfer his education benefits under the TEB prior to his transfer to the Retired Reserve, but he did not do so.  The program was implemented in July 2009, with an effective date of 1 August 2009,  and he was transferred on 30 November 2011.  Prior to retirement, he did not apply for the transfer of benefits while on active duty or in the Selected Reserve.

2.  The Army, DOD, and VA 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 for transfer of 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 continued to serve in a troop program unit of the USAR until he retired in November 2011.  His service and his sincerity are not in question; however, since the applicant had been in the Selected Reserve since the program was implemented in August 2009, over 2 years after the program was implemented, he had sufficient time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence. 

4.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.  In view of the foregoing, he is not entitled to 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)                                         AR20130014811





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ABCMR Record of Proceedings (cont)                                         AR20130014811



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