IN THE CASE OF

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20140006467 


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 for an exception to policy to transfer 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, in effect:

* despite the massive publicity campaign prior to his retirement, not all information operations/campaigns are 100-percent effective
* he was informed of the procedure to change from the Montgomery GI Bill to the Post-9/11 GI Bill, but he did not receive clear instructions on how to transfer the benefits to his family members
* he saw the education counselor prior to his retirement and expressed his concerns, but he was assured that all family members listed on the Defense Eligibility Enrollment Reporting System (DEERS) would be eligible to receive the educational benefits
* he attempted to get a statement from the counselor who gave him the information, but that person is no longer employed as a counselor
* he has the ability to provide the Board with evidence of his character and values that identify him as an individual deserving of the benefits
* at no time during his retirement/outprocessing briefings were specific instructions or guidance given regarding how to transfer the benefits
* he served his country faithfully for many years and he completed his own education – he had no reason not to transfer the benefits to his family members had he been given clear guidance

3.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) Docket Number AR20120017212
* Department of Veterans Affairs (VA) Certificate of Eligibility
* DA Form 2823 (Sworn Statement)
* Defense Manpower Data Center letter
* copies of identification cards
* email correspondence
* Army Career and Alumni Program (ACAP) and Transition Assistance Program (TAP) checklists
* two VA pamphlets titled, "The Post-9/11 Veterans Education Assistance Act of 2008"
* Enlisted Record Brief
* noncommissioned officer evaluation reports
* college diploma

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 ABCMR in Docket Number AR20120017212 on 30 April 2013.

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's records show he enlisted in the Regular Army on 1 August 1984.  He served in a variety of stateside and overseas assignments and he attained the rank/grade of sergeant major (SGM)/E-9.

4.  On 31 October 2010, he was honorably retired and he was placed on the Retired List in the rank/grade of SGM/E-9 on 1 November 2010.  He completed 26 years and 3 months of creditable active service.

5.  He provided his Enlisted Record Brief, ACAP and TAP schedules, college diploma, two Post-9/11 VA pamphlets, noncommissioned officer evaluation reports, and copies of his and his wife's identification cards.

6.  He also provided:

	a.  a VA Certificate of Eligibility under the Post-9/11 GI Bill, dated 20 August 2009.  This gave him details about his eligibility for the Post-9/11 GI Bill;

	b.  a sworn statement from his wife, dated 29 January 2014, who states she attended the retirement briefings with the applicant – specifically, the educational benefits briefing during their TAP appointments at Fort Bliss, TX – and raised concerns regarding transfer of the benefits.  They were assured that as long as they were enrolled in DEERS, the applicant would be able to transfer the benefits;

	c.  a letter from the Defense Manpower Data Center, dated 3 April 2012, informing him that his family is enrolled in DEERS; and

	d.  post-retirement email correspondence regarding the transfer of benefits.

6.  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 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 Department of Defense (DOD), the Army, and the 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.  

7.  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.

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, 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 retirement, but he did not do so.  The program was implemented in July/August 2009 and he retired on 31 October 2010.  Prior to retirement while still serving on active duty, he did not apply to transfer the benefits.

2.  The DOD, the VA, 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 Soldier must meet various criteria to qualify 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 continued to serve until he retired in October 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, nearly 15 months after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  Regrettably, he could not provide evidence from the education counselor to corroborate his contentions.

4.  The requirements of this program are set in the law and any changes to this law are not within the purview of this Board.  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 the overall merits of this case are 




insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120017212, dated 30 April 2013.



      ___________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)                                         AR20140006467



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ABCMR Record of Proceedings (cont)                                         AR20140006467



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