IN THE CASE OF:
BOARD DATE: 16 September 2014
DOCKET NUMBER: AR20140001872
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 to his dependent children.
2. The applicant states that he was unaware and not informed that he needed to request transfer of benefits prior to leaving the Army.
3. The applicant provides copies of Orders Number 13-003-00077.
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed in the U.S. Army Reserve (USAR) on 26 February 1998, with prior enlisted Reserve service.
2. He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 15 September 2009. He was released from active duty on 30 December 2009 and he was transferred to a Reserve unit. He was credited with completing 3 months and 16 days of net active service and 7 months and 17 days of total prior active service.
3. On 27 October 2011, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).
4. His records contain and he provided a copy of Orders 13-003-00077, issued by Headquarters, 99th Regional Support Command, on 3 January 2013, which reassigned him from his current unit to the Retired Reserve effective 2 January 2013.
5. 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. The requirements for transferability are the Soldier:
a. has a 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 of Department of Defense (DoD)) or statute from committing to 4 additional years and agrees to service for the maximum amount of time allowed by such policy or stature; or
c. is or becomes retirement eligible during the period 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 service or 20 qualifying years of Reserve service.
6. 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. 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 was fully eligible to transfer his education benefits to his dependent children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retirement, but it appears he did not do so. The program was implemented in July 2009, almost three years prior to his transfer to the Retired Reserve. Prior to retirement, there is no evidence and he did not provide any showing he properly applied for the transfer of benefits while on active duty and/or he was given false information by a reliable source about the rules of transferring education benefits.
2. The DoD, Department of Veterans Affairs, and the Army 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 Solider must meet various criteria to quality to transfer benefits to an eligible dependent; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.
3. The applicant's service and his sincerity are not in question. He continued to serve in the Selected Reserve for almost three years after the TEB provisions of the Post-9/11 GI Bill was implemented. Therefore, he had plenty of time to submit his application and/or to verity that his application was submitted in the proper manner. There is no evidence he exercised due diligence. While there may have been some confusion during the early stages after the implementation, he retired well after the program was implemented.
4. There is neither an error nor an injustice in his transfer of benefits processing. Therefore, 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) AR20140001872
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ABCMR Record of Proceedings (cont) AR20140001872
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