BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140004258 


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 reconsideration of his earlier request to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his daughters.

2.  The applicant states:

   a.  In his original application he claimed he was unaware of the requirements for the transfer of his Post-9/11 GI Bill benefits to his authorized family members and the Board found that he had provided no evidence to prove the claim.  He finds it abhorrent that the Board would automatically assume that he was lying, and would not simply take him at his word as an officer in the United States Army - especially since he is not trying to do anything other than obtain benefits he has already earned.

   b.  He is not attempting to prove he is eligible for the Post-9/11 GI Bill or eligible to transfer the benefit - he is eligible for both as the Board stated in their findings.  In fact, he added his wife before he retired and he would have added his daughters if anyone had told him he would lose the benefit after retirement.

   c.  The Board found the Department of Defense (DOD) and the Army conducted "massive public campaigns that generated major communications on the TEB through military, public, and social media venues" and that he had not provided "sufficient evidence" that shows he was "deprived of information broadly disseminated through public campaigns."

   d.  While he finds it repulsive that his word as an officer of the United States Army is not "sufficient evidence" none of the "massive public campaign" reached him due to the nature of his assignments and his only chance to learn about the TEB requirements was in his pre-separation counseling, which failed to occur.

   e.  With the exception of a brief stint at Fort Leavenworth, KS, in 2002, from 1999 until 2007, he was a member of a classified Special Mission Unit on Fort Bragg, NC.  As such, he was insulated from every single bit of any public campaign conducted by the DOD, Post-9/11 GI Bill or otherwise.
   
   f.  In order to see his Officer Evaluation Reports, one would have to physically travel to Special Management Division, possess a Top Secret - Secure Compartmented Information clearance, and have a positive need to know.  Like the cloistered nature of his records from this time, so were our day-to-day lives in this unit.  They were insulated from the majority of events occurring within DOD and the Army, with only policies that affected war fighting reaching his level.  The "massive public campaign" supposedly enacted never reached his ears, either while at home or deployed in combat earning the right to transfer his benefits.  He honestly did not know the Post-9/11 GI Bill existed - much less that there were stringent requirements for transfer until he left the unit.
   
   g.  In 2007, he transferred to his final assignment as the executive officer for the Army Reserve Officers' Training Corps battalion at the Citadel in Charleston, SC, a remote military assignment.  His headquarters was at Fort Knox, KY, more than a thousand miles away.  His "battalion" had 13 active duty members.  There was no day room with military personnel messages tacked up, Armed Forces Network, or bulletin boards used for the supposed "massive public campaign."  They did not have an education office, Post Exchange, or any other facility so common on posts used by the military for promulgating DOD messages.
   
   h.  At The Citadel, their entire existence was focused on commissioning lieutenants.  As such, he could tell the Board every single scholarship, tuition assistance, or cultural learning opportunity for cadets, but he never saw a single item on the Post-9/11 GI Bill for active duty personnel - and he was the executive officer.  As a matter of fact, just getting correct information on how to complete his retirement packet was an absolute trial; with him sending out his own "massive campaign" via email to a plethora of people at Fort Knox, KY, to ensure it was done correctly.  There was no office or person at The Citadel who could help him.
   
   i.  As the "massive public campaign" missed him in his final two assignments, his only chance to learn about the requirements would have occurred at his pre-separation counseling at Fort Jackson, SC.  While he stated he did not want information on a plethora of subjects, he checked yes to information on the        GI Bill.  He stated he wanted information on how it functioned, and this is specifically where he was told he could transfer his benefits at any time, up to and including after he left the service.
   
   j.  The counseling checklist is signed 14 December 2009, a mere four months after implementation of the Post-9/11 GI Bill and one month outside the magic 90-day window whereby some service members were granted the very relief he is attempting to gain.  Due to the newness of the law, the counselors that gave him his pre-separation counseling did not understand the requirements for TEB, and could not inform him of the correct procedures.
   
	k.  The counseling checklist reflects the Montgomery GI Bill, not the Post-9/11 GI Bill.  Contrast that with the enclosed current pre-separation checklist.  The new form specifically states the Post-9/11 GI Bill.  At the time of his counseling, not only were the people ill-informed, the forms themselves were not set up to discuss any TEB benefits of the Post-9/11 GI Bill.

	l.  Had he known he had to place his daughters into the GI Bill system before retirement in order to transfer benefits, he most certainly would have done so at the same time he added his wife.  As proof of this mindset, during his counseling he was told that he had to purchase veteran's group life insurance (VGLI) before he left active duty.  He could change the amounts all he wanted, but he had to purchase before he retired, or lose the opportunity forever - much like he belatedly found out about TEB for the GI Bill.  There is no reason for him to have placed his wife into the system and not his daughters.  It flies in the face of common sense.

	m.  It is instructive to repeat paragraph 5, page 3, of enclosure 1:  "The Secretaries of the Military Departments will provide active duty participants…individual pre-separation…counseling on the benefits under the Post-9/11 GI Bill and document accordingly."  This did not occur in his case.  While he was required to sign a document stating he understood the restrictions with VGLI, no such document was signed by him for the Post-9/11 GI Bill, even though the policy demands it.  There was no counseling provided to him on the bill as directed by law.  There is certainly no documentation stating that occurred.  Thus, he respectfully requests a reevaluation given the new evidence provided herein and ask for a reinstatement of his daughters for transfer benefits under the Post-9/11 GI Bill.

	n.  In the interest of full disclosure, as he has no confidence that the Board proceeding is anything other than a method to deny him the benefits he risked his life to earn, he has provided this complete packet to Senator Lindsey Graham for any action he deems appropriate. 

3.  The applicant provides:

* a copy of his previous request
* Docket Number AR20130008780
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 1613-R (Records Cross Reference)
* DA Form 67-9 (Officer Evaluation Report)
* DA Form 2648 (Pre-separation Counseling Checklist for Active Component Service Members)
* DA Form 2648 TEST (Pre-separation Counseling Checklist for Active Component, Active Guard Reserve, Active Reserve, Full Time Support, and Reserve Program Administrator Service Members

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130008780, on 28 January 2014.

2.  The applicant provides a new argument and several other documents as shown above that were not previously considered by the Board.  This is considered new evidence and warrants consideration by the Board.

3.  The applicant was appointed as a Reserve commissioned officer of the United States Army on 20 May 1988 and he entered active duty on 15 September 1988.  He served in a variety of assignments and he attained the rank of lieutenant colonel.  He was honorably retired on 31 March 2010 and he was credited with completing 21 years, 6 months, and 16 days of active duty service.

4.  The applicant provides:

   a.  A DA Form 1613-R, dated 31 May 2007, that indicates the applicant's         DA Form 67-9 for the period 1 June 2006 through 31 May 2007, is located in the Special Management Division, Controlled Files Branch.

   b.  A DA Form 67-9 for the period 29 May 2009 through 14 January 2010, which shows the applicant was rated as an Assistant Professor of Military Science at The Citadel.

   c.  A DA Form 2648, dated by the applicant and a counselor on 14 December 2009, in which the applicant highlights the fact that the checklist references the Montgomery GI Bill.

   d.  A DA Form 2648 TEST, dated January 2011, in which the applicant highlights the fact that the checklist now references the Post-9/11 GI Bill as well as the Montgomery GI Bill.

5.  Public Law 110-252 limits the 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.

	a.  A Soldier must currently be serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent(s) on or after 1 August 2009.  

	b.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  

	c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent, the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS).  Wards of State are not eligible for the benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  

	e.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  

	f.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The DOD, the Army, and the Department of Veterans Affairs (VA) initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.  

	g.  A Soldier must initially request to transfer benefits using the DOD TEB online database.  The TEB online database was operational on 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective dependent must then submit an application for VA educational benefits (VA Form 22-1990e) to request to use the benefits.  

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is 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 the individual:  (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.

7.  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, document accordingly, and maintain records 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 educational benefits under the TEB program prior to his retirement on 31 March 2010.  

2.  The applicant contends based on the nature of his duty assignments he was untouched by the "massive public campaign" and his only chance to learn about the TEB requirements was in his pre-separation counseling, which failed to occur.  He further states he would have added his daughters if anyone had told him he would lose the benefit after retirement.   However, prior to retirement, while still on active duty, he willfully admits to transferring the benefit to his spouse.  

3.  It is evident based on the applicant's pre-separation counseling checklist that he requested education counseling.  It is further presumed he received said counseling based on his execution of the TEB to his spouse.  

4.  The applicant retired on 31 March 2010.  His faithful service and his sincerity are not in question.  However, since the applicant had been serving on active duty since the program was implemented in August 2009, and his application was successfully submitted in the proper manner in order to transfer the benefit to his spouse, there is no evidence he exercised due diligence with regard to allocating at least one month of benefits to his daughters prior to his separation.  

5.  The law that governs the Post 9/11 TEB allows a member who transferred his or her benefits while on active duty or in the Selected Reserve to reallocate or revoke the months of entitlement after he or she retires.  However, this is only allowed to a dependent or spouse for whom the member has already transferred at least one month of the entitlement to.  

6.  There are no provisions at this time to allow individuals to retroactively change the allocation or transfer benefits once they are no longer members of the armed forces.  Unless there is a future change to the enacted legislation, a member will not be eligible to transfer educational benefits to their dependents after they retire or reallocate the benefit to a dependent or spouse for whom the member did not already transfer at least one month of the entitlement.

7.  There is neither an error nor an injustice in his case and, as such, 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 to amend the decision of the ABCMR set forth in Docket Number AR20130008780, dated 28 January 2014.



      _______ _  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)                                         AR20140004258





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ABCMR Record of Proceedings (cont)                                         AR20140004258



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