BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140002186 


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 records to show his education benefits were transferred to his eligible dependent in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states after completing his mobilization in 2009, he was instructed by his unit that he could transfer his eligibility for the Post 9/11 GI Bill to his daughter.  He went online and transferred his education benefits to his younger daughter and assumed it was complete and would be there when it was time to apply for benefits for his daughter.  His younger daughter is now a sophomore so he went online to make sure it was set up and figure out the procedures for applying for benefits.  When he went online the GI Bill benefit was still showing his name and not his daughter's.

     a.  The whole process for making this change was very confusing and the instructions were apparently incomplete.  He was given instructions by his unit administrator and now that he has gone back in and researched it, he has found that those instructions were vague at best.  He was directed to the "mil connect" site and he found the drop down boxes to change the benefit to his daughter, but he was told at that time that that was all he had to do until he applied for benefits. He did not print a screen image of the change as it didn't occur to him that he needed to at the time.  He also was not informed that he needed to complete this before he retired.  He was told he could do it anytime.  He made the change to his younger daughter who he figured would need the benefit the most.  His wife and he are both college graduates so there would have been no reason for him to keep the benefits for himself or for his wife.  He feels this is a huge impact on his daughter and his family financially.  It would be a major injustice if he cannot transfer the benefit (even though he thought he already did) just because he retired from the active Reserves.

     b.  He further states the reason he went online to verify that the benefit was transferred to his daughter was that his brother who is in the Army National Guard mentioned some type of approval letter which he hadn't remembered seeing or needing.

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 21 June 2008, he entered active duty in support of Operation Enduring Freedom.

3.  On 25 June 2009, he was honorably released from active duty, at the completion of his required period of active service, and transferred back to a troop program unit of the U.S. Army Reserve.

4.  On 24 June 2010, he was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).

5.  On 9 November 2010, Department of the Army, Headquarters, 88th Regional Support Command, issued Orders 10-313-00022, transferring him to the Retired Reserve effective 31 December 2010 in the rank of major due to completion of 20 or more years of qualifying service for retired pay at age 60.

6.  The Department of the Army, Office of the Deputy Chief of Staff, G-1, previously stated that a Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DoD), and Department of Veterans Affairs (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 education benefits.

7.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further this law 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.

8.  On 22 June 2009, the 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, in pertinent part, 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.

9.  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.

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

	a.  A Soldier must initially request to transfer benefits on the DoD's TEB online database.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits.

	b.  Changes to the number of months allocated to family members can be made at anytime, to include once the Soldier leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, there is insufficient evidence to support his request.

2.  Evidence shows he served for a qualifying period, was eligible to complete, and could have completed the TEB action necessary to transfer his Post-9/11 GI Bill education benefits to his eligible dependent(s) while serving as a member of the Selected Reserve prior to his transfer to the Retired Reserve on 31 December 2010 (his retirement date).  However, he has not provided evidence showing he attempted to transfer benefits prior to leaving military service, that he was given false information by a reliable source about the rules of transferring education benefits, or that he was unfairly deprived of information on the program that was widely disseminated throughout DoD.

3.  It is understandable that he desires to transfer a portion of his education benefits.  However, he is no longer eligible to transfer benefits under the 
Post-9/11 GI Bill transferability program.

4.  To grant him relief at this time would afford him a benefit not afforded to others in similar circumstances.  Accordingly, there appears to be no basis for granting his request.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20140002186



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ABCMR Record of Proceedings (cont)                                         AR20140002186



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