IN THE CASE OF:	  

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140008312 


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 approval to transfer the remaining balance of his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 

2.  He states:

* he filled out the request electronically, but cannot find a copy of what he printed
* he was stationed in Iraq
* he submitted two Department of Veterans Affairs (VA) Forms 1990E (Application for Family Member to Use Transferred Benefits) requesting TEB for his twin sons
* benefits for his children was denied because the Army had not indicated that the applicant had been approved for the TEB program

3.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two VA Forms 22-1990E 
* two VA Forms 22-5490 (Dependents' Application for VA Education Benefits)
* two VA Forms 21-674 (Request for Approval of School Attendance) 
* five memoranda
* 11 emails
* a fax cover sheet
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 was commissioned as an officer in the United States Army Reserve (USAR) on 4 June 1983.  He was ordered to active duty in support of Operation Iraqi Freedom from 25 October 2009 to 26 September 2010.  The applicant retired from the USAR on 1 July 2011 in the rank/grade of lieutenant colonel/O-5 after completing a total of 25 years of creditable service.

3.  He submitted:

	a.  a fax cover sheet, dated 23 April 2014, wherein he indicated that he was resubmitting the DD Forms 1990E for his twin sons that had originally been submitted on 5 March 2014, with a confirmation number of 3923538;

	b.  two VA Forms 22-1990E, dated 5 March 2014, which indicated that he transferred his educational benefits to his twin sons;

	c.  two undated VA Forms 22-5490, which indicated that he submitted a dependent’s application for VA Educational Benefits;

	d.  two VA Forms 21-674, dated 5 March 2014, which indicated that he submitted a request for approval for school attendance for his dependents;

	e.  two memoranda from the VA, dated 25 April 2014, which stated that they had received his application for benefits for each of his sons;

	f.  two memoranda for his sons, from the VA, dated 25 April 2014, which stated that after careful review of their claim for benefits under the Post 9/11 GI Bill, it was denied because the Army had not indicated that their spouse or parent had been approved for the transferability program;
	g.  a memorandum from the VA, dated 2 May 2014, which stated that he received a combined service-connected evaluation of 80 percent; and

	h.  11 emails, dated from 10 April to 2 May 2014, wherein he indicated that he transferred his education benefits to his dependents in 2010.  However, the emails also indicate that there are no records of him applying to transfer his educational benefits prior to 2014. 

4.  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 dependent (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 Enrolment 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.  

5.  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.

6.  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.

7.  Title 38, U.S. Code, section 3319, prohibits service members no longer on active duty from transferring of educational benefits.  The legislation specifically states "an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty on 26 September 2010 and transferred to the Retired Reserve on 1 July 2011.  There is no evidence he attempted to transfer his Post 9/11 educational benefits to his children while he was on active duty and/or in the Selected Reserve.  

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 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 for a dependent or spouse for whom the member has already transferred at least 1 month of the entitlement.  In the applicant's case, there is no evidence that shows he transferred at least 1 month of entitlement to his children.  Therefore, his children are ineligible for the transfer. 

4.  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 1 month of the entitlement.

5.  There is neither an error nor an injustice in the applicant'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)                                         AR20140008312





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ABCMR Record of Proceedings (cont)                                         AR20140008312



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