IN THE CASE OF:	  

		BOARD DATE:	 5 February 2015 

		DOCKET NUMBER:  AR20140011763 


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 an exception to policy to transfer unused education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  Specifically, he wishes to transfer 20 months of entitlement to his daughter A____M____, and 2 months of entitlement to his daughter K____M____. 

2.  The applicant states, in effect, that at the time when he was transferring his Post-9/11 GI Bill benefits to his first daughter, he was not informed or told to add all of his kids at that same time.  He did not know nor was informed of the proper procedures for passing his GI Bill benefits to his children.  

3.  The applicant provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the applicant enlisted in the Army National Guard (ARNG) on 22 May 1993.  He served in staff and leadership positions and attained the rank/grade of sergeant first class (SFC)/E-7 on 1 August 2010.  

2.  On 18 August 2009, the Ohio Army National Guard (OHARNG) issued him a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

3.  On 1 September 2011, he was transferred to the Retired Reserve.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 24 years and 10 days of total service for pay.

4.  A review of his records reveals no evidence nor does he provide evidence that shows he transferred, or attempted to transfer, a portion of his unused education benefits to either of his daughters he cites in his request, in accordance with the TEB provisions of the Post-9/11 GI Bill.   

5.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual is 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 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 provides that 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.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

8.  Public Law 110-252, section 3020, limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent.

9.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a service member leaves military service, provided the service member allocates at least 1 month of benefits (to each respective dependent) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an exception to policy to transfer a portion of his unused education benefits to his two dependent daughters.  He contends the transferability requirements were not adequately explained during his transition into retirement.  He acknowledges he transferred benefits to his first daughter; however, there is no evidence, nor does he submit any evidence, which shows he attempted to transfer his unused education benefits to his other dependents prior to his separation.  

2.  Notwithstanding his sincerity, the DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant retired over 2 years after the program was implemented.

3.  The requirement to transfer the benefit while a member is in on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  As the applicant failed to transfer the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting his 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)                                         AR20120007756



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ABCMR Record of Proceedings (cont)                                         AR20140011763



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