IN THE CASE OF:	  

		BOARD DATE:	  6 August 2014

		DOCKET NUMBER:  AR20130019755 


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 his Post-9/11 GI Bill education benefits.

2.  The applicant states:

   a.  His initial request was submitted in 2009.  In 2012, he realized that the request had been disapproved.  He went through the Army G-1 to receive approval.  The status was changed from approved to disapproved as soon as his dependent attempted to use the benefit.  

   b.  His dependents have been denied these benefits after being told that they could plan on receiving them.  This creates a significant hardship, especially because his daughter graduates from high school this spring.  Without funding, it will be a great challenge to pay for her to attend college.

   c.  He was deployed in 2008-2009 to the Horn of Africa.  While there, he heard about the Transfer of Education Benefits (TEB) program.  As soon as he could, he spoke with the education counselor there in Djibouti.  He followed the counselor's instructions to process the transfer to his dependents.  Once completed, he was advised that he had successfully transferred his GI Bill benefits and his status showed "Submitted" on the website.  The TEB website did not indicate that further review was required or that he had to check back.  It simply stated, "After your request is approved, your family member should apply to the Department of Veterans Affairs (VA) electronically."  He had no reason to think there would be any problems at all.
   d.  He informed his wife of the news.  He did not continue to check the status of his transfer and was under every impression that all was fine.  In 2011, it became necessary for him to access the GI Bill site in order to use one month and 26 days of the benefit for himself.  He does not recall making any other alterations at that time.  

   e.  In 2012, several months prior to his retirement on 30 November 2012, he was going through many of his records.  At the time, he noticed that the TEB site reflected "disapproved – contact service representative."  He attempted to telephone the only member listed, but it was for officers only.  He sent an email and the reply stated that he had not met his service obligation.

   f.  His initial request to transfer the benefits was on 8 July 2009.  His review of the rules then indicated that he was eligible for retirement during the period 1 August 2009 through 1 August 2013.  Meaning he would have to agree to serve an additional period and the reference retirement eligibility dates were not applicable to him.  Based on that, the education counselor advised him that his remaining 3 years, 4 months, and 22 days from the date of his application would meet his obligation for transferring the benefits.  

   g.  After hearing this disturbing news, he immediately contacted his reenlistment noncommissioned officer (NCO) who knew absolutely nothing about the TEB for Post-9/11.  He then contacted a Career Counselor at Fort Sam Houston, TX.  She prepared a DA Form 4187 (Personnel Action) that was posted with his initial transfer request and his retirement orders.  He received approval for the TEB from Department of Defense (DoD) Manpower Data Center on 1 April 2013, well after his 30 November 2012 retirement date.  At this point, he was satisfied that his transfer was complete and his dependents would be able to use the benefit to pay for college.

   h.  His wife recently began attending college.  When she submitted her Certificate of Eligibility for payment it was rejected.  That rejection prompted him to contact the VA and they informed him that his initial request to transfer benefits was denied and the DA Form 4187 submitted would not suffice.  The reason for the original denial or the person who denied it was not available.  He was not flagged when he applied for the TEB, was not under investigation, and had not failed a physical training test or was overweight.  He cannot think of a reason his requests would have been denied and the VA cannot provide one for him.  The VA representative sympathized with his situation and instructed him to prepare this appeal for relief.

   i.  His initial requests never should have been denied.  If there was additional action required on his part at the time of the requests, it was certainly not discussed on the TEB submission screen.  He was never contacted by a reenlistment NCO or a Career Counselor to discuss the benefit.  In fact, he told many people about the TEB and almost no one was even aware of the program. He honestly felt and feels that he did everything that he could have done; absolutely everything that he was requested to do in order to transfer his education benefits to his family members.

   j.  Almost worse than the denial of these benefits after the approval, is the fact that he was never informed of the original disapproval or instructed to resubmit the request by anyone.  He reenlisted on 28 May 2011 to meet his retirement date.  If he had waited just a few days and reenlisted on 1 June 2011, the VA representative advised him that his TEB would be fine.  This again is something that he feels he should have been advised at the time of his reenlistment.

   k.  He feels let down by this system.  When the program began, it was an absolute Godsend.  He submitted his TEB as soon as he heard about this.  In the absence of anyone who knew anything about the program within his command, he went to the education center for guidance.  If at any time he would have been informed that he had to reenlist or extend, he would have done that.  Even after he discovered the potential problem with this transfer, he was told what he needed to do in order to fix it, and he did by submitting an exception to policy (ETP) through his chain of command to Army G-1.  To have this benefit denied after he retired and past his window for making any changes does not seem fair.

3.  The applicant provides copies of the following:

* Enlisted Record Brief
* TEB print screen
* Orders Number 025-0002
* DA Form 4187
* VA Certificate of Eligibility letter
* DoD Manpower Data Center notification
* Directive-Type Memorandum (DTM) 09-003:  Post-9/11 GI Bill, page 14 (Transferability of Unused Education Benefits to Family Members)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 November 1992.  He served as an animal care specialist and animal care NCO.  He served continuously on active duty through several reenlistments in various assignments.  He was promoted to pay grade E-6 on 1 February 2007.

2.  He provided copies of the following:
   a.  A TEB print screen, dated 8 July 2009, which shows he submitted a transfer of Post-9/11 GI Bill benefits to his spouse, son, and daughter, with a transfer beginning date of 1 August 2009.

   b.  Orders Number 025-0002, dated 25 January 2012, releasing him from active duty for the purpose of retirement, with an effective date of 30 November 2012, after completing 20 years and 19 days of net service.

   c.  A DA Form 4187, dated 13 July 2012, wherein he requested an ETP through his chain of command for the service remaining required to transfer the Post-9/11 GI Bill benefits as he was unable to meet the service remaining requirement due to retention control point.  The form also stated that he had 19 years, 7 months, and 16 days of eligible service at the time of the second request.  He submitted his original request on 1 August 2009.  The ETP was approved on the same day.

4.  He was honorably retired in pay grade E-6 on 30 November 2012.  He was credited with completing 20 years and 19 days of net active service.  

5.  He also provided copies of the following

   a.  A VA Certificate of Eligibility letter, dated 30 November 2012, wherein his wife was advised of the approval of entitlement to benefits under the Post-9/1 GI Bill.  The letter also stated that the applicant had transferred the benefits on 28 June 2012.

   b.  A DoD Manpower Data Center notification, dated 1 April 2013, which shows he was notified of his approval to transfer his unused Post-9/11 GI Bill benefits to his family members.  The notification shows his transfer request date was 28 June 2012.   

   c.  DTM 09-003, page 14, which provides guidance for the transferability of unused education benefits to family members.

6.  Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, Public Law 110-252 limits eligibility to transfer unused benefits to those 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.  Public Law 110-252 states:

   a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her dependents on or after 1 August 2009.
   b.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least ten years of eligible service to transfer to eligible children.  
   
   c.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in the service on 1 August 2009.  

7.  The HRC, Finance and Incentives Team, HRC, verified that the applicant had a Retention Control Point (RCP) of 30 November 2015 and he voluntarily elected to retire which is why his TEB request had been rejected.

8.  On 29 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 approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill.

9.  The policy further states the Secretaries of the Military Department will provide active duty participants and members of the Reserve Components with qualifying active service individuals pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain record for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he initially applied for the transfer of benefits on 8 July 2009.  He applied again in 2011 and 2012.  On 1 April 2013, he was notified of the approval of his transfer request.

2.  The Finance and Incentives Team, HRC, verified that the applicant had an RCP of 30 November 2015; however, he voluntarily retired which was why his TEB request had been rejected.

3.  When he applied for TEB in 2009, he had not completed the required 20 years of service; therefore, his request was denied.  A subsequent TEB request was approved in 2013, after his separation date of 30 November 2012.  He could have remained in the Army until his RCP date (30 November 2015) to fulfill his service obligation; however, he voluntarily elected to retired.  Therefore, his TEB requested was rejected.


4.  The applicant is commended for completion of his honorable service; unfortunately, he was not eligible to transfer his benefits until he had fulfilled his service obligation.  Therefore, this incentive was not available to him at the time of his separation and it is still not available to him unless Congress changes the law.  There is neither an error nor an injustice in his transfer of benefits processing.  

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)                                         AR20130019755





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ABCMR Record of Proceedings (cont)                                         AR20130019755



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