IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140012623 


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

2.  The applicant states he was told at the time of his final out-processing appointment that he could not transfer his Post-9/11 GI Bill to his dependent.  He states he has been getting the run around from the Department of Veterans Affairs (VA) who told him to contact the Defense Finance and Accounting Service.  He has been going between the two agencies for some time and is frustrated.  He served honorably for 20 years and states he was never informed that he had to transfer his Post-9/11 GI Bill during his enlistment.

3.  The applicant provides:

* a self-authored statement
* Orders 083-0022
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 enlisted in the Regular Army on 30 January 1990.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He served in a variety of stateside and/or overseas assignments and he attained the rank of sergeant first class (SFC)/E-7.

3.  On 31 January 2010, he was retired by reason of sufficient service for retirement.  He was placed on the Retired List in his retired rank/grade of  SFC/E-7 on 1 February 2010.  He completed over 20 years of active service. 

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 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.  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, the Department of Defense (DoD), and the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible to transfer his education benefits under the TEB prior to retirement, but there is no evidence he did so while still on active duty.  The program was implemented in July 2009 and he retired on 31 January 2010.  

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 continued to serve until he retired in January 2010.  His service and his sincerity are not in question; however, since the applicant has been on active duty since the program was implemented in August 2009, nearly six months after the program was implemented, he had sufficient time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence. 

4.  The requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is neither an error nor an injustice in his case and, as such, there is no basis for granting the applicant's 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)                                         AR20140012623





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ABCMR Record of Proceedings (cont)                                         AR20140012623



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