IN THE CASE OF:	  

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20140007393 


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 record to show his request to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill was approved.

2.  He states, in effect:

	a.  He served in the U.S. Army more than 24 years and had multiple combat tours.  He elected to retire to help the Army reduce the force structure.  His original intention was to use his remaining benefits to cover his two children's college education following his completion of a project management degree in September 2013.  If he is not allowed to transfer education his education benefits it will create a significant financial hardship for his family as he is the primary provider for his children's education.

	b.  He submitted his request for retirement under the provisions of a Selective Early Retirement Board (SERB) message, and his retirement was approved for 20 September 2014.  During SERB counseling in July 2013, he was told he was a low-risk candidate for the SERB and that electing to retire early would not compromise his ability for the TEB.  Unfortunately, this counsel proved incomplete, and he was not afforded the opportunity to transfer his benefits nor was he advised to transfer his benefits prior to submission of his retirement packet.  

	c.  He also did not receive notification that, as of 1 August 2013, electing the TEB incurs a 4-year active duty service obligation.  He was not given the opportunity or advised to transfer his benefits prior to that date.  

3.  He provides a self-authored memorandum.

CONSIDERATION OF EVIDENCE:

1.  On 18 May 1990, the applicant took the oath of office as a Reserve commissioned officer.  Effective 26 June 1990, he was ordered to active duty.  He is currently serving as a lieutenant colonel in the Regular Army.  

2.  His transaction history in the U.S. Army Human Resource Command's (HRC) Integrated Web Services shows:

	a.  On 11 February 2014, HRC received a TEB application.  His application was declined because he had a voluntary retirement date of 30 September 2014 in lieu of the SERB.  As a result, he was unable to fulfill the 4-year active duty service obligation he would incur.

	b.  On 18 February 2014, an HRC staff member responded to a request for assistance regarding the applicant's eligibility for the TEB.  

		(1)  The staff member informed the inquiring party that the applicant was ineligible for the TEB because he chose to retire in lieu of the SERB and could not meet the 4-year service obligation.  

		(2)  The applicant submitted his retirement application on 30 July 2013 and had an approved retirement date of 30 September 2014.  If he had requested TEB on or after 1 August 2013, he would have been eligible if he had opted for the SERB and requested TEB prior to SERB selection.  Had he been selected by the SERB, the service obligation he would have incurred as a result of TEB could have been adjusted.

		(3)  If he had requested the TEB prior to 1 August 2013, he would have incurred a 1-year service obligation that he would have been able to complete by his voluntary retirement date.  

3.  Department of Defense (DOD) Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  
	
	a.  Eligible individuals include members of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, are eligible for the Post-9/11 GI Bill, and:  

	b.  have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or

	c.  have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, are precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agree to serve for the maximum amount of time allowed by such policy or statute; or

	d.  were or became 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 duty or 20 qualifying years of Reserve service.)  For those individuals who had an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service was required.  For those individuals eligible for retirement:

* on or after 1 August 2009 and before 1 August 2010, 1 year of additional service was required
* on or after 1 August 2010 and before 1 August 2011, 2 years of additional service was required
* on or after 1 August 2011 and before 1 August 2012, 3 years of additional service was required

4.  Military Personnel (MILPER) Message Number 13-089, Title:  FY13 (Fiscal Year 2013) SERB, Army Competitive Category (ACC), dated 4 April 2013, announced that the Secretary of the Army had authorized use of a SERB to convene on or about 13 August 2013.  The FY13 SERB was to consider lieutenant colonels and colonels in the ACC meeting the statutory eligibility outlined in the message.  Affected officers could request voluntary retirement in lieu of consideration by the SERB.  Paragraph 6 addressed the impact of the SERB on Post-9/11 GI Bill benefits.  It stated:

* officers who elected the TEB prior to SERB selection would retain their transfer and not face recoupment if they agreed to serve until the mandatory separation date established by the SERB
* officers electing voluntary retirement in lieu of the SERB consideration without completing the active duty service commitment incurred as a result of the TEB would forfeit the benefit

5.  MILPER Message Number 13-102, title:  Post 9/11 GI Bill TEB Four-Year Service Obligation for Approved TEB Requests Submitted On/After 1 [August 2013], dated 15 April 2013, was issued to emphasize that all TEB requests submitted on or after 1 August 2013 would incur a 4-year service obligation from the TEB request date regardless of years in service (except when precluded by policy or statute from committing to an additional 4 years).  The message stated the 0, 1, 2, or 3-year service obligations were no longer available after 1 August 2013.  

6.  When the TEB program was initiated in 2009, the Army, DOD, and Department of Veterans Affairs initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and the TEB.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant could have elected the TEB as early as 1 August 2009, the date the TEB went into effect.  Had he elected the TEB at that time, he would have incurred a 1-year service obligation.  He did not apply for the TEB until 11 February 2014 and his application was disapproved because he could not complete the required 4-year service obligation due to his approved voluntary retirement.  

2.  MILPER Message Number 13-089 clearly stated how voluntarily retirement in lieu of the SERB would affect  the TEB, and the message was published well in advance of 1 August 2013, the date on or after which all Soldiers electing the TEB incur a 4-year service obligation.  The MILPER message announcing the change to a 4-year service obligation was also published well in advance of the date the change went into effect.  

3.  Although the applicant claims he was not properly counseled on the impact of his voluntary retirement in lieu of the SERB would have on the TEB, this claim is not substantiated by any documentary evidence.  Further, information on the TEB has been readily available since the program began in 2009.  It appears he is solely responsible for delaying his application for the TEB.  

4.  While it is unfortunate that his delay in applying for the TEB and his choice to voluntarily retire in lieu of the SERB have combined to deprive him of this benefit, there is no evidence of error or injustice that would warrant 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)                                         AR20140007393



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ABCMR Record of Proceedings (cont)                                         AR20140007393



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