IN THE CASE OF:	  

		BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140004202 


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 an exception to policy to transfer his unused education 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.  On or about December 2009, prior to retiring from active duty, he visited the education center at Fort Drum, NY in order to check on the status of future college courses.  While speaking with the education counselor, a discussion about the Post 9/11 GI Bill and TEB was brought up.  While the counselor was showing him the site, he asked if he could complete the necessary steps in order to transfer his benefits.  The counselor and he completed the necessary steps and submitted his request.  He ensured he gave each family member one month each, due to being able to change time amounts after leaving active duty. 

	b.  His daughter is currently a senior in high school and will be attending a college in the Fall of 2014.  For this reason, he logged into the milConnect site to transfer additional months and start the Veterans Online Application (VONAP) process with the Department of Veterans Affairs (VA).  This is when he first realized he was unable to transfer his education benefits.  After exhausting all efforts to include the education center, VA, DOD and U.S. Army Human Resources Command (HRC), he was instructed to bring this error to the Army Review Boards.  He was told by both the education center and HRC that at the time he applied for TEB there were major problems and issues with the site.  He believes this is the reason why his records were not updated properly. 
	c.  He met all prerequisites prior to leaving active duty, and there is no reason why he would not transfer his benefits.  He believes it would be a great injustice if he was unable to transfer his benefits.  His family and he earned these benefits through 22 years of service and sacrifice for our great nation.  He asks this Board to review and approve his request.  He did not check his benefits on milConnect due to his oldest child only being a freshman in high school.  He realizes as a senior leader in the Army he should have checked prior to his daughter's senior year in high school.  However, he does not believe this is a substantial reason to lose the ability to use his benefits for his family.  His family deserves and definitely has earned the right to use his benefits due to multiple deployments and many days and nights being without their father.

3.  The applicant provides:

* Letter from the Fort Drum Education Office
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retirement orders

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.  The applicant enlisted in the Regular Army on 29 December 1988.  He served in a variety of stateside or overseas assignments and attained the rank/grade of first sergeant (1SG)/E-8.  

3.  On 11 December 2009, Headquarters, U.S. Army Garrison, Fort Drum, published official orders ordering his release from active duty and placement on the Retired List effective 31 August 2010. 

4.  He was honorably retired on 31 August 2010 and placed on the Retired List in his retired rank/grade of 1SG/E-8 on 1 September 2010 after completing over   20 years of creditable active service. 
5.  He provides a letter from an education specialist at the Fort Drum Education Office that reads: 

	a.  On 21 February 2014, he contacted the Education Center at Fort Drum, NY by phone to discuss the Post 9-11 GI benefits he transferred to his daughter in 2010.  During that call, he stated in December 2009 he came to the Education Center at Fort Drum and spoke with Mr. L-- B-----, Guidance Counselor, about enrolling in courses.  He also indicated he discussed with Mr. B-----r his intent to transfer his Post 9-11 benefits to his dependents and was provided the opportunity to do so in Mr. B-----r's office.  At the time of this process, he was already at 20 years of service and would not have to accrue additional active duty service time to request this transfer.  He left Mr. B-----r's office thinking the action was completed.  He is now attempting to provide his dependent with benefits and found he could not see or print out any documentation verifying this.

	b.  She (the education specialist) initiated action to assist him by first reviewing his old Education Records.  The counseling notes do not reflect any indication he initiated his transferability of education benefits with the counselor.  She then asked him to create a new username and password in case the website did not recognize his civilian CAC.  While it did update his information, his screen at the website was unchanged.  He came to her office that same day (21 February) and together they tried again to see where, when, and if his information was submitted.  The website did not provide any indication that he submitted a request to transfer his benefits.  They searched other areas of the website for assistance and an 800 number to DOD was provided as well as contacting the VA office just in case they could provide him with any help, which they could not, as he stated in another visit to her office on 24 February 2014.

	c.  On 24 February, after talking with her and Mr. Ag----i, the Education Services Officer, Mr. Ag----i sought assistance from HQ Army Continuing Education System (ACES)/Education Incentives Branch Chief.  The Branch Chief stated that all the old transactions were still visible in the milConnect website (www.dmdc.osd.mil/milconnect).  What they do not have visibility to is if a Soldier logged into the site and never hit the submit button.  Incentives Branch went back to Defense Manpower Data Center (DMDC) a couple of years ago and asked if they could tell if a Soldier just logged into the site and was told that the only transactions they (DMDC) could see were those of Soldiers who actually took action on the website (submitted request).  Again, they could not substantiate his actions when reviewing the website.

6.  Public Law 110-252 establishes the legal requirements on the transferability of unused Post 9/11 GI Bill benefits; however, this law also limits the transfer to those members who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  Public Law 110-252, as amended by Public Law 111-377, identifies the qualification to receive the Post-9/11 GI Bill, one of which is that the service member must have performed on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill.  Public Law 110-252 establishes legal requirements on the transferability of 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.

7.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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.

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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence that shows the applicant submitted a request to transfer the education benefits to his family member(s) while on active duty and/or in the Selected Reserve.  It appears the Fort Drum Education Office went to an effort to confirm if and when he submitted a request to transfer his benefits on the TEB website.  However, no evidence of a submission was found.
2.  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, the applicant retired after the program was implemented.

3.  His service and his sincerity are not in question; however, as he was on active duty since the program was implemented in August 2009, he had plenty of time to submit his application and/or to verify his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  He had access to information regarding the requirement to request TEB through the DOD TEB online database.  He did not do so.  There is neither an error nor an injustice in his case.

4.  The requirement to transfer 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.  Additionally, the ABCMR does not correct records solely for the purpose of establishing entitlement to other programs or benefits.  As the applicant failed to provide sufficient evidence to verify that he transferred the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting his 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)                                         AR20140004202





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ABCMR Record of Proceedings (cont)                                         AR20140004202



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