BOARD DATE:	  2 December 2014

		DOCKET NUMBER:  AR20140007399 


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 education benefits to his spouse under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  

2.  The Total Army Personnel Database indicates the applicant died after he submitted his application to this Board; therefore, he will hereafter be referred to as the former service member (FSM).  

3.  The FSM states he was medically retired and due to the timeframe, his medication, and his state of mind, he was unable to transfer the benefit to his spouse.  He is 53 years old and his spouse is younger.  He was saving the benefit for his spouse and children so before he dies his spouse would be able to receive a degree so she would be able to care for their children.  He was always told that he could transfer his education benefits at any time.  Now he is being told he cannot and his health will not allow him to attend school.  

4.  The applicant provides:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* his Final Decree of Divorce, issued by the District Court of the 78th Judicial District, Wichita County, Texas 
* Certificate of Marriage
* Certified Abstract of Birth
* a letter from the Department of Veterans Affairs (VA)

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 12 years, 4 months, and 29 days of total prior active service, the FSM again enlisted in the Regular Army on 22 July 2008.  

3.  His record contains a DA Form 199 (Physical Evaluation Board Proceedings), dated 11 May 2010, which shows the applicant was recommended for permanent disability retirement due to an atrioventricular block, referred to as symptomatic bradycardia with sinus arrest.  The onset of the condition was November 2009.  The condition was deemed unfitting as the Soldier could not reasonably perform the duties of his military occupational specialty due to his inability to do sustained aerobic activity and cardiac disfunction.

4.  On 7 July 2010, he was honorably retired due to permanent disability.  He completed 14 years, 4 months, and 15 days of active service.  His record is void of any evidence that shows he attempted to transfer his education benefits prior to his retirement.

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 a member of the Selected Reserve.

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependents (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 family members.  To be considered an eligible family member the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible family member status upon turning age 21 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 (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 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 educational benefits.

	g.  A Soldier must initially request to transfer benefits on the DOD TEB online database.  The TEB online database was operational 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 family members 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.-

	i.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.

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.

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

DISCUSSION AND CONCLUSIONS:

1.  The FSM was eligible to transfer his education benefits under the TEB prior to retirement, but there is no evidence he did so.  The program was implemented in July 2009 and he retired on 7 July 2010.  There is no evidence he applied for the transfer of benefits while on active duty prior to retirement.

2.  The Army, DOD, and VA 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 for transfer of benefits to an eligible family member; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The onset of the FSM's cardiac condition was November 2009; however, he continued to serve until he retired on 7 Jul 2010.  While it is understandable the FSM's state of mind may not have been focused on transferring his education benefits, the FSM had been on active duty since the program was implemented in August 2009; therefore, he had ample time to submit his application and/or to verify that his application was submitted in the proper manner.  

4.  There is neither an error nor an injustice in the FSM's transfer of benefits processing.  In view of the foregoing, 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 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)                                         AR20140007399





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ABCMR Record of Proceedings (cont)                                         AR20140007399



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