IN THE CASE OF:	  

		BOARD DATE:	  1 October 2014

		DOCKET NUMBER:  AR20140003787 


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 transfer of his educational benefits to his family members under the Transfer of Education Benefits (TEB) provision of the     Post-9/11 GI Bill.

2.  The applicant states:

   a.  He applied to transfer his educational benefits prior to retiring from active service.  He submitted his request with the help of the local education center at Fort Bliss, TX.  At the time, the only way to request transfer of educational benefits was through a facsimile (fax) transmission.  He sent the request one day but when he called the documents had not been received.  He faxed them again and they went through the second time.  He was told it was done and he would be able to transfer his Post-9/11 GI Bill benefits to his dependents when they reached the eligible age of 18.  
   
   b.  When his son was nearing the time to start school, he went to the            e-benefits website to set him up for him to receive a portion of his education benefits; however, the website stated he was not eligible to transfer his benefits.  He is attaching the documents that he had faxed in 2010 along with the fax transmission sheets.

3.  The applicant provides Department of Veterans Affairs (VA) Form 22-1990 (Application for VA Education Benefits), VA Form 22-1990E (Application for Family Members to Use Transferred Benefits), two fax transmission verification reports, and two fax cover sheets. 
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.  Having had prior enlisted active, the applicant was appointed as a Reserve warrant officer of the Army, as a Warrant Officer One (WO1) with concurrent call to active duty.  He entered active duty on 16 November 2001 and he attained the rank of Chief Warrant Officer Three (CW3) on 1 July 2007.

3.  He was honorably retired on 31 December 2010 in the rank of CW3 and he was transferred to the Retired List on 1 January 2011.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 20 years and 12 days of creditable active service.

4.  He provides:

* VA Form 22-1990, dated 10 August 2010, which shows he requested to use his Post 9/11 GI Bill benefits
* VA Form 22-1990E, dated 10 August 2010, which shows he requested his daughter, born in 1995 (age 15), use his Post 9/11 GI Bill benefits
* fax transmission verification reports that show documents were faxed on 10 August 2010 and 23 August 2010 

5.  Public Law 110-552 establishes legal limitations on the transferability of unfunded Post 9/11 GI Bill benefits and limits eligibility to 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.  

	a.  A Soldier must have 6 years of eligible service to transfer the benefits to a spouse and 10 years to transfer the benefits to eligible children.  


	b.  A Soldier must have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System.  Children lose eligible family member status upon turning 21 years of age, or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried.  

	c.  A Soldier should not be granted relief based on unawareness of 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 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.  

	d.  A Soldier must initially request the transfer through the DOD TEB online database (emphasis added).  The TEB database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  The respective dependent must then submit the application for VA education benefits. 

	e.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service they are not authorized to transfer unused benefits.

6.  On 22 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be allowed to transfer his Post-9/11 GI Bill educational benefits to his family members because he faxed a request to do so to the VA in August 2010 and was told it was approved.

2.  Notwithstanding his contention that at that time the only way to request the transfer of education benefits was through a fax transmission, the program required that the Soldier must initially request the transfer through the DOD TEB online database.  The TEB database was operational on 29 June 2009, 1 year and 6 months prior to his retirement date of 31 December 2010.  Once approved in the TEB database, the information was automatically relayed to the VA.  There were no provisions for Soldiers to fax their applications directly to the VA.  

3.  In addition, the VA Form 22-1990E he provided is titled as an application for family members to use transferred benefits.  It is not an application to request the transfer of benefits.  He did not provide the response from VA which should have informed him of the requirement to submit the request to transfer benefits through the TEB online database while he was serving on active duty.

4.  He was serving on active duty until his retirement on 31 December 2010.  He would have been eligible to transfer any unused education benefits to his eligible family members through the TEB database; however, he did not do so while he was serving on active duty.  

5.  Notwithstanding his sincerity, the DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, he did not retire until 1 year and 6 months after the program was implemented.

6.  The requirement to transfer the benefits while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  As he failed to transfer the benefits while serving on active duty as required by law, there is an insufficient evidentiary basis for granting 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)                                         AR20140003787





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ABCMR Record of Proceedings (cont)                                         AR20140003787



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