BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140008474 


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, in effect, an exception to policy to reinstate his entitlement to transfer his unused education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

	a.  His son is a senior at the University of Oklahoma and has been attending the university for the last 4 years.  His tuition and expenses have been paid largely by the earned benefits he assigned to him at the time of his retirement from the U.S. Army.

	b.  He did this assignment in full cooperation with the policy and procedures existing at that time and with the approval of the Department of Defense (DOD), which as he understands it, sets and enforces the rules for military retirees.

	c.  The paperwork and steps necessary were completed and approved by DOD and for over 3 years his son has enjoyed the benefit as he completes his undergraduate work.

	d.  In the spring of 2014, he received notice from the university that his funding had not been received and that there was a "problem" with his eligibility to receive these payments.  He began to investigate the sudden interruption of this benefit that had been, until that point, consistent in its arrival time.


	e.  Over a period of weeks, he discovered that his retirement date was the issue.  Those who approved the transfer of benefits to his son are now informing him that he should have remained in the Army for an additional 7 months in order to take advantage of this benefit.

	f.  At the time he signed the paperwork, he was assured that all the work was completed and that he had performed his obligation(s) for him to be able to receive the benefit.  At no time was he informed that he needed to remain in the service for an additional 7 months in order to receive the benefit.  There is no doubt that given knowledge of the requirement he would have complied.  He would have remained in the service, which had been great to him, for a mere 7 months in order to pay for his son's education without hesitation.

	g.  He felt then, as he had for 20 years, that those responsible for administering any program concerning veterans would let him know what he needed to do in order to correctly proceed.  Further, when his son started school, the funds for tuition and housing arrived on time for over 3 years so they would never have suspected there was any sort of problem.

	h.  He would have reacted quickly to resolve the issue had he known.  He is asking for consideration in this matter.  He entered an agreement with the understanding that he had fulfilled the obligations necessary to receive this benefit.  At no time was he advised that any element of his obligation was incomplete.

	i.  His son is in the last semester of what they understood to be a 36-month commitment earned by his service in the Army.  Having his tuition and board paid was a great motivator for him to remain in the service and he is proud to have done this for his son.

	j.  There has been at a minimum a great deal of concern and worry regarding this issue.  He feels like he is being punished over 3 years later for this.  All he did was go see the career counselor in his unit to exercise an option that was offered to him.  How is it anyone's fault other than the career counselor who evidently did not know how to do his job?  The benefit should not have been switched over to his son if he did not meet all of the requirements to include extending for 7 months.  A Soldier does not serve 20 years in the U.S. Army to give up that benefit that he or she has earned.  That makes no sense.

3.  The applicant provides no additional evidence.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 March 1995.  He had 
3 years of prior active duty service.

2.  A one-page print out of the Defense Manpower Data Center, obtained from a Department of the Army (DA), G-1, Post 9/11 GI Bill TEB service representative, shows the applicant was approved for TEB on 6 January 2010 and that he was assigned a service obligation end date of 6 January 2013.

3.  Additional information obtained from the DA, G-1, Post 9/11 GI Bill TEB service representative, revealed that as part of the TEB approval process, the Soldier must agree to the following statements:

	a.  "I understand and agree to remain in the Armed Forces for the period required.  I understand that failure to complete that service may lead to an overpayment by the Department of Veterans Affairs (VA) for any payments made." 
   
	b.  "I understand that I am responsible for any overpayments due to not completing my additional obligated term of service agreement."

4.  On 16 June 2011, he submitted a request for voluntary retirement with a retirement date of 31 March 2012.

5.  Orders Number 171-0607, dated 20 June 2011, issued by Headquarters, 101st Airborne Division, directed his release from active duty effective 31 March 2012 with placement on the Retired List the following day.

6.  He was retired on 31 March 2012 after completing 20 years and 1 day of active duty service.

7.  On or around 21 April 2014, the VA Regional Office sent an email to the Education Incentives office at the U.S. Army Human Resources Command (HRC), concerning the applicant's Post-9/11 GI Bill transfer and the associated service obligation.

8.  Based on the email from the VA, HRC advised the applicant that when he elected to transfer the Post 9/11 GI Bill to his eligible dependents, he was assigned a service obligation of 6 January 2013.  He retired from the Army on 
31 March 2012, prior to fulfilling the entire service obligation.  Because he did not fulfill the service obligation, his Post 9/11 GI Bill transfer request had been rejected.  His dependents are not eligible to use Post 9/11 GI Bill benefits and he may be subject to recoupment by the VA if benefits have already been paid.

9.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 
110-252, House of Representatives, 2642.  In July of 2008, Congress voted into law the Post-9/11 GI Bill, which went into effect on 1 August 2009.

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001, of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

10.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program.

11.  The program guidance stipulates that if a service member becomes retirement eligible during the period on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service is required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;
	
	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required.

12.  The Army, DOD, and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  The information on the program and subsequent transfer of entitlements were published well in advance of the implementation date of 1 August 2009, with emphasis on the criteria.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-2c, states the ABCMR will decide cases on the evidence of record.  It is not an investigative agency.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible to transfer his education benefits under the TEB provision of the Post 9/11 GI Bill and was approved for the TEB on 6 January 2010.  However, based on the program stipulations, he incurred a service obligation of 3 years from the date of the approval.

2.  Based on information obtained from the DA, G-1, Post 9/11 GI Bill TEB service representative, he agreed to serve the additional service required for the Post 9-11 GI Bill TEB.  He retired on 31 March 2012, which was over 9 months prior to his obligated service requirement.

3.  The evidence of record suggests the applicant was made aware of the additional service obligation at the time he elected TEB.  In the absence of evidence to the contrary, Government regularity must be presumed in this case.  

4.  Based on the foregoing, there is no basis for 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)                                         AR20140008474





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ABCMR Record of Proceedings (cont)                                         AR20140008474



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