BOARD DATE:	  15 MAY 2014

		DOCKET NUMBER:  AR20130015495 


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, in effect, 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

	a.  He made a request for a TEB while he was on active duty, and although it was rejected, he was never contacted with respect to the matter.  He was assured by the Fort Campbell Education Center that this was a completed action. Thus, he retired with every confidence that his daughter would receive his educational benefits.  His first notice that there was a problem processing this TEB came in the form of a rejection notice two years after retirement (when his daughter applied to use her benefits).  He met every requirement to execute a TEB.  Since he had completed 20 years of active duty service prior to August 2009, such transfer would incur no further service obligation with respect to the requested TEB action.  

	b.  An administrative error was made in processing his request for TEB.  The Fort Campbell Education Center gave him copies of the emails that the U.S. Army Human Resources Command (HRC) apparently sent to request further information for his TEB.  They were sent to him at his unit email.  His unit email was inaccessible.  He was home outprocessing while his unit was overseas.  The computers configured with that email profile were all deployed, and therefore unavailable.  He does not understand why he was not contacted via any reasonable channel.  He has corresponded with an HRC official regarding this issue and the official responded that this Board is his only recourse for redress of the matter.  He contacted the official as soon as he received his first notification that his TEB had been denied, a notification came to him via a rejection of his daughter’s application to use her educational benefits, received more than two years after his application to transfer benefits to her.  

	c.  Failing to resolve this matter through correspondence with the HRC official, he then involved his congressman to ask assistance cutting through the administrative details such as the Army Board for Correction of Military Records process time so that he could have this benefit which he earned during his service for his daughter.  That has been more time consuming and less productive than he had hoped.  If he loses this year’s benefit for his daughter’s education, he estimates it will cost him roughly $20,000; therefore, he is asking that the Board correct this to the original application date of February 2011 and authorize reimbursement for this year’s benefit.  He had 28 unbroken years of service.  He believes he earned the right to transfer this benefit to his daughter, and was so assured prior to his retirement.  He does not believe he should have been denied a transfer of this benefit to his dependent without contact, as he would surely have provided the needed information to complete the transfer.

3.  The applicant provides:

* email correspondence with HRC 
* U.S. Navy DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 12 December 1989
* U.S. Army enlisted DD Form 214, ending on 28 January 1991
* U.S. Army officer DD Form 214, ending on 30 April 2011 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant was appointed as a warrant officer of the Army and entered active duty on 29 January 1991.  He served in a variety of stateside and/or overseas assignments and he attained the rank of chief warrant officer four (CW4). 

2.  He underwent a pre-separation briefing on 8 February 2011 wherein he indicated that his anticipated date of separation was 30 April 2011.  He checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 (Pre-Separation Counseling Checklist for Active Component Service Members) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling, or to attend additional workshops, briefings, classes, etc.
3.  On 30 April 2011, he was retired by reason of sufficient service for retirement. He was placed on the Retired List in his retired rank of CW4 on 1 May 2011.  He completed 28 years, 4 months, and 3 days of active service. 

4.  He provides:

	a.  Multiple email traffic from HRC, dated January 2011, regarding his TEB submission, also dated January 2011, advising him that in order to assist him with the TEB, he would need to provide additional information.  He was notified on three separate occasions of this requirement. 

	b.  Multiple email traffic with and from Fort Campbell Education Center, dated April 2011 informing him of the legal requirements regarding the TEB and advising him to apply to this Board. 

5.  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.  

6.  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.

7.  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 retirement, but there is no evidence, if and when he did so in January 2011, that he provided all the needed documents and/or information despite being told on three separate occasions.  There is insufficient evidence to show a military computer-caused problem resulted in his not receiving those emails.  The program was implemented in July 2009 and he retired on 30 April 2011.  

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 until he retired in April 2011.  His service and his sincerity are not in question; however, since the applicant has been on active duty since the program was implemented in August 2009, nearly 20 months 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.  The requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is neither an error nor an injustice in his case and, as such, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that relief should be granted.  The applicant clearly indicated his intention to provide for the transfer of his educational benefits before his retirement.  He should be authorized the transfer and retroactively reimbursed any expenses he has incurred to date.

2.  The individual indicated his intentions and went through the process to do so. The rejection was clearly not followed up by the person responsible for contacting the applicant.  

3.  Therefore, the Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his family members prior to his transfer to the Retired Reserve, provided all other program eligibility criteria are met.



      _______ _   _______   ___
               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)                                         AR20130015495



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ABCMR Record of Proceedings (cont)                                         AR20130015495



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