IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130019514 


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 correction of his military records to show he transferred his educational benefits to his sons under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states that on 13 November 2010 while stationed in Jalalabad, Afghanistan, he elected to transfer his Post-9/11 GI Bill benefits to his two sons.  The unit retention noncommissioned officer (NCO) at the time assisted him with the validation process and the transfer was completed.  After transferring to the Warrior Transition Unit (WTU) at Fort Drum, NY, he began the process of preparing to return to civilian life.  As required with the transitioning process, he was briefed by the education department during the Transition Assistance Planning class that he attended from 11 to 13 July 2012.  At that time it was verified that the transfer was in the system and that the person(s) he transferred the benefits to were his two sons.  He began clearing the installation and the Army on 4 December 2012.  During the clearing process, he was required to clear both the education department and the retention NCO for the WTU.  At both agencies there was no issue with the transfer of benefits to his two sons.  The education department did explain to him that once he was retired the benefit would be managed through the Department of Veterans Affairs (VA).  He began looking into colleges for his oldest son who is currently a junior in high school.  He contacted the VA to begin the process for getting the funds for his son.  He was told that they did not have any record of him or his boys at that time.  The VA also had no record of his having either the Montgomery GI Bill or Post-9/11 GI Bill.  He explained that could not be right because he had signed up for the Montgomery GI Bill when he joined the Army in 1987 and paid the required $1,200.00.  At that time it was explained that it was possible that the Department of Defense (DOD) just did not transfer it to the VA as of that date.  The VA recommended that he contact the Army and see what the delay was.  The Department of the Army informed him that he did not transfer to the Post-9/11 GI Bill and did not transfer his benefits to his sons.  The Army did not have a record of his GI Bill.

3.  The applicant provides a memorandum of support, dated 8 October 2013.

CONSIDERATION OF EVIDENCE:

1.  On 28 July 1987, the applicant enlisted in the Regular Army.  He served continuously and attained the rank of master sergeant/pay grade E-8 on 1 November 2008.

2.  Records show the applicant was deployed to Afghanistan from 26 October 2010 to 13 October 2011.

3.  On 27 March 2013, the applicant retired due to a temporary physical disability. 
He completed 25 years and 8 months of active duty service.

4.  The memorandum of support provided by the applicant is a statement from a staff sergeant career counselor who was the applicant's squadron career counselor while he was deployed to Afghanistan.  He contends that he assisted the applicant with transferring his Post-9/11 GI Bill benefits to his dependents.  At that time, career counselors were still authorized to approve requests of such transfers.

5.  A review of records at U.S. Army Human Resources Command, Fort Knox, KY showed no evidence that the applicant had submitted a TEB request prior to his retirement.  Furthermore, there is no evidence showing he received a rejection letter.

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 benefits 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.

	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.  DOD, the Army, 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.

	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 via a 
VA Form 22-1990e to request to use the benefits.

7.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual 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:

	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, 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 contends that his military records should be corrected to show he transferred his educational benefits to his sons under the TEB provision of the Post-9/11 GI Bill because he did so while deployed to Afghanistan in November 2010.

2.  Records show the applicant was eligible to transfer his educational benefits under the TEB prior to retirement, but there is no convincing evidence showing he did so.

3.  Records at HRC do not show that the applicant requested or attempted to request a TEB.  There also is no evidence that he had been rejected for such a request.

4.  The memorandum of support provided by the applicant is not sufficiently compelling to overcome the lack of any other documentary evidence.

5.  DOD, the Army, and the 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.

6.  The program was implemented in August 2009.  The applicant did not retire until the spring of 2013.  Therefore, he had sufficient time to submit his application and to verify that his application was submitted in the proper manner. There is no evidence showing he exercised due diligence.

7.  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

____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 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)                                         AR20130019514



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ABCMR Record of Proceedings (cont)                                         AR20130019514



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