IN THE CASE OF:  	  

		BOARD DATE:  23 April 2015  	  

		DOCKET NUMBER:  AR20140013606


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 reinstate her approved Transfer of Education Benefits (TEB) to her dependents under the TEB provision of the Post-9/11GI Bill, by adjusting her retirement date to 19 October 2010, the date that coincides with her obligation end date (OED), thereby fulfilling the service remaining requirement (SRR) she assumed when she executed the transfer of her education benefits.  

2.  The applicant states, in effect:

* her dependents' entitlement to use her education benefits, as previously transferred to them under the TEB provision of the Post 9-11 GI Bill, was revoked after her dependents utilized some of the benefits
* she signed up for the TEB and received approval; however, it was not made clear to her that she incurred an SRR
* she needed one more month of service before she retired; essentially one more drill weekend or battle assembly, which she would have attended if she had known
* she talked to the unit administrator of the unit from which she retired, who said he was unaware that fulfillment of an SRR was a requirement of the retirement process
* she went through the proper channels and the benefits were approved, not once but twice, and asks that they be restored for her children 

3.  The applicant provides a self-authored letter, dated 25 July 2014, and 38 pages of correspondence from the Department of Veterans Affairs (VA).
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 U.S Army Reserve (USAR) on 19 July 1990.  

3.  On 19 August 2010, the U.S. Army Human Resources Command (HRC) issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified her that she had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  Orders 10-229-00009, issued by Headquarters, 88th Regional Support Command, Fort McCoy, Wisconsin on 17 August 2010 transferred her to the Retired Reserve in the rank/grade of sergeant first class (SFC)/E-7 effective 8 September 2010.  Her AHRC Form 249-E (Chronological Statement of Retirement Points) shows she completed 20 years, 1 month, and 21 days of qualifying service for Reserve retirement.  

5.  By virtue of her length of service and active service performed after 11 September 2001, she was determined to be fully-eligible for the Post-9/11 GI Bill.  No evidence of education counseling prior to her separation was found in her records.

6.  The applicant's two sons each used education benefits the applicant transferred to them under the TEB provision of the Post-9/11 GI Bill.

7.  The applicant's sons received letters from the VA that notified them that their entitlement to future education benefits was revoked due to their mother's separation on 8 September 2010, prior to the fulfillment of her obligated end date of 19 October 2010.  


8.  On 7 February 2014, the applicant sent a letter of "Notice of Disagreement" to the VA, stating her disagreement with their decision to revoke her sons' Post-9/11 GI benefits and asked that the decision be reversed.  She argued that the benefits had been approved, and if revoked, the result would be a financial burden that would be ridiculous and unfair. 

9.  On 26 February 2014, the applicant received a letter from the VA denying her request for reversal of the VA's decision to terminate her sons' future education entitlement.

10.  The VA waived a considerable portion of the debt her sons accrued from their initial usage of unearned education benefits under the TEB provision of the Post-9/11 GI Bill.

11.  The TEB database shows the applicant requested the transfer of unused education benefits on 19 October 2009 and her request was approved on the same date.  The TEB database further shows she incurred an OED of               19 October 2010, based on her transfer of unused education benefits to her sons, and in spite of a remaining portion of her SRR left unfulfilled, she retired on 8 September 2010.

12.  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.  

13.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member 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 six years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of approval and agrees to serve four additional years in the Armed Forces from the date of election.

	b.  Has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of approval, is precluded by either standard policy (Service or DOD) or statute from committing to four additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.

	c.  Is or becomes retirement eligible during the period from 1 August 2009 through 31 July 2012 and agrees to serve an additional period of service -- this clause expired 1 August 2013.

14.  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's request for correction of her record to show she retired on    19 October 2010, thereby restoring her eligibility to transfer her remaining unused education benefits to her dependents under the TEB provision of the Post-9/11 GI Bill, was carefully considered.  

2.  The applicant was fully eligible to transfer her educational benefits to her dependents under the TEB provision of the Post-9/11 GI Bill prior to her retirement.  She elected to do so on 19 October 2009, and her request was approved on the same date.  

3.  She incurred an additional service obligation as a result of her approved request to transfer her education benefits.  She contends that this additional period of service was unknown to her and had she known about it, she would have served that additional period of service.       

4.  Information from the TEB database reveals she had an OED of 19 October 2010 and that she retired on 8 September 2010.  She did not fulfill the service obligation.  Although the number of days required to fulfill her service obligation appears to be 40 days, the fact remains that she did not fulfill her obligation.    

5.  The DOD, VA, and the Army 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 to transfer benefits to an eligible dependent.  

6.  Nevertheless, officials at some education centers and Reserve Component Headquarters may have been confused or unaware of Post-9/11 GI Bill Program details and as a result, may not have conducted proper counseling.  It is reasonable to presume that had she been fully aware of the additional period of service while in the Selected Reserve, she would have served the necessary period of service to fulfill it.  Therefore, as a matter of equity, her records should be corrected to show she served the additional time period of service prior to her effective date of transfer to the Retired Reserve.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her retirement orders to show she was transferred to the Retired Reserve on 19 October 2010 and correcting all associated electronic records/databases, thereby reestablishing her entitlement to transfer her unused education benefits to her dependents under the TEB provision of the Post-9/11 GI Bill.    





      __________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)                                         AR20140009851



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ABCMR Record of Proceedings (cont)                                         AR20140013606



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