IN THE CASE OF:
BOARD DATE: 13 January 2015
DOCKET NUMBER: AR20140008374
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:
The applicant requests an exception to policy to transfer educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to eligible dependents.
2. The applicant states, in effect, he was not informed of the requirement to transfer his GI Bill to his eligible dependents had to be made while he was still on active status as a drilling/Troup Program Unit (TPU) reservist.
3. The applicant provides:
* DD Form 2648-1 (Preseparation Counseling Checklist for Reserve Component Service Members Released from Active Duty), dated
10 September 2009
* DA Form 4856 (Developmental Counseling Form), dated 6 February 2011
* Letter from the Department of Veterans Affairs (VA), dated 6 June 2011
* VA Form 21-0501 (Veteran Benefits Time Table)
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. After having previous enlisted service, the applicant was appointed as a Reserve Commissioned Officer on 17 April 1981. He served as a TPU Soldier in the U.S. Army Reserve (USAR) and attained the rank of colonel.
3. His record contains a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 25 April 2001, which states he has completed the required years of qualifying reserve service and was eligible for retired pay upon application at age 60.
4. His record contains a DD Form 214 showing he was on active duty from
16 August 2008 to 25 November 2009.
5. Orders Number 11-140-00083, issued by Headquarters, 81st Regional Support Command, Fort Jackson, SC, on 20 May 2011 show he was reassigned to the Retired Reserve on 1 June 2011.
6. His record contains a chronological statement of retirement points, dated
19 May 2014 which shows he completed a total of 31 years, 2 months, and 10 days of qualifying service for retirement.
7. The applicant's last day of service with the USAR was 31 May 2011. He was eligible for the Post 9/11 GI Bill. No evidence of education counseling prior to his separation was found in his records.
8. 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 Dependent Eligibility Enrollment 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. 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 paying for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.
9. 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 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 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 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.
10. 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 applicant was eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so. The program was implemented in July 2009, with an effective date of 1 August 2009, and he was placed in the Retired Reserve on 1 June 2011. Prior to his placement in the Retired Reserve, he did not apply for the transfer of benefits while on active duty 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 applicant was serving on active duty from August to November 2009. When he was released from active duty he continued to serve in his Reserve unit in an active status until he was placed in the Retired Reserve in June 2011. His service and his sincerity are not in question; however, the applicant has been in an active status since the program was implemented in August 2009, nearly 2 years after the program was implemented.
4. The evidence he provided is insufficient. The fact that these counseling statements and forms are void of information pertaining to the MGIB TEB does not mean that he was unaware or uninformed.
5. In view of the foregoing, there is insufficient evidence to grant 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) AR20140008374
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ABCMR Record of Proceedings (cont) AR20140008374
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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