IN THE CASE OF:  	  

		BOARD DATE:  16 September 2014	  

		DOCKET NUMBER:  AR20130018766 


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, correction of his records to show he did not incur an additional service obligation when he applied to transfer his educational benefits to his dependents under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill before he left active duty on 31 March 2012.

2.  The applicant states, in effect, that he applied for TEB to his dependents before he retired and the transfer was approved.  His spouse started utilizing the benefits.  He was subsequently notified that she was not authorized the benefit because he had not completed his remaining service obligation which has resulted in a $25,000 debt that he cannot afford.  He was unaware that he had a service remaining obligation and that it was through no fault of his own that a mistake in approving his TEB was approved and benefits were paid.  

3.  The applicant provides a one-page letter explaining his application that contains a list of enclosures provided with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the Regular Army in the pay grade of E-7 on      6 April 2011 when he submitted his application for voluntary retirement. 

2.  On 8 August 2011, his request for retirement was approved by the U.S. Army Human Resources Command (HRC) for an effective date of 1 April 2012.

3.  On 15 December 2011, the applicant submitted his request for TEB.  On        9 January 2012, his career counselor approved the TEB with a TEB OED (3-year service obligation) of 14 December 2014.

4.  On 28 January 2012, the applicant’s spouse submitted a request to use the benefits and received approval by the Department of Veterans Affairs while the applicant was still on active duty (terminal leave). 

5.  The applicant was honorably retired on 31 March 2012 and was transferred to the Retired List effective 1 April 2012.  He had served 21 years, 8 months, and 23 days of active service. 

6.  On 17 April 2012, the applicant’s spouse was issued a Certificate of Eligibility for Post 9/11 GI Bill benefits.

7.  On 26 September 2013, the HRC Finance and Incentives Branch informed the VA Regional Personnel Office Buffalo that the applicant’s service obligation was incorrect in that it should have been 14 December 2012 instead of              14 December 2014 and that he had not fulfilled the TEB obligation.

8.  On 27 September 2013, the VA issued an overpayment notice to the applicant.

9.  In the processing of this case a staff advisory opinion was obtained from the HRC Education Incentives Team which opines, in effect, that while the applicant did submit his request to transfer his post – 9/11 GI Bill benefits to his dependents while still on active duty, he was ineligible to do so because he did not have 20 years of service as of 1 August 2009 and he did not agree to serve the additional 1-year of required service obligation because he had an approved retirement.  Accordingly, he was not eligible to transfer his benefits without serving an additional year of obligated service.  The advisory opinion also indicates that the applicant’s service obligation was incorrectly calculated by the career counselor and notes that he should not have been approved because he already had an approved retirement and could not complete the 1-year service obligation.  HRC also opines that his spouse was approved for benefits because she applied for benefits while he was still on active duty and the system did not update in time for the VA claims examiner to see that the applicant was no longer on active duty.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

10.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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.

11.  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.

12.  On 10 July 2009, the Army released the Post 9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, according to the applicable law and regulation, he was not eligible to transfer benefits under the Post-9/11 GI Bill transferability program.  He was REFRAD from active duty on 31 March 2012; however, at the time the program was implemented on 1 August 2009 he did not have 20 years of service.  More importantly, because he was not retirement eligible when the program was implemented he would have been required to commit to an additional 1 year of active duty.  However, because he had requested and received an approved retirement it appears that he would not have been able to make that commitment.  Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits to his family members.

2.  It appears that at the time his career counselor approved his TEB his should have been told that he had an obligation until 14 December 2014 (or, even as adjusted, 14 December 2012).

3.  Additionally, the Departments of the Army, Defense, and Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of its implementation.

4.  There are no provisions for granting such benefits without completion of the required service obligations being completed.  To do so would afford him a benefit not afforded to others in similar circumstances.  Therefore, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130018766





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ABCMR Record of Proceedings (cont)                                         AR20130018766



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