IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140014094 


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, that his record be corrected to show that he requested and his request was approved to transfer his Post-9/11 GI Bill educational benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

	a.  He was separated from the North Carolina Army National Guard (NCARNG) in July 2009 and he was transferred to the Individual Ready Reserve (IRR) where he remained until May 2012 when he retired.  He was never offered the opportunity to transfer his remaining educational benefits under the TEB.

	b.  On 7 May 2014 after applying to the Department of Veterans Affairs (VA) to transfer the remaining 9 months of his Post-9/11 GI Bill educational benefits, he was informed that the VA does not determine eligibility under the Transfer of Education (TOE) Benefits (i.e., TEB) provision of the Post-9/11 GI Bill.  On 17 July 2014, he was informed by Mr. T____ E____, VA Education Services, that the application for the TEB option should have been offered to him prior to separation from the service.  However, this was the first time he learned there was a requirement to be approved for TEB prior to separation from the service and this option should have been offered to him upon his release from the NCARNG and at the time of retirement.

	c.  When he was separated from the NCARNG in July 2009 and transferred to the IRR, he did not receive separation or retirement counseling.  He was never offered the opportunity to qualify for the TEB.  He received his retirement orders from the U.S. Army Reserve (USAR) on 18 May 2012.  At that time, he did not receive any retirement counseling informing him of any benefits to which he was entitled.  His records will show that on both of these dates he had 9 months left of Post-9/11 GI Bill educational benefits and he had completed more than 20 years of qualifying service toward non-regular retirement.

	d.  As indicated in the VA Post-9/11 GI Bill Benefits Handbook he is providing, had he been properly offered the opportunity to apply for the transfer of his educational benefits under the TEB at the time of separation from the ARNG or USAR, he would have incurred no further service obligation.  He is asking that the Board correct his records to show he requested transfer of his Post-9/11 GI Bill educational benefits to his daughter under the TEB provision of the 
Post-9/11 GI Bill and his request was approved.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 April 2005
* VA Certificate of Eligibility, dated 7 March 2014
* U.S. Army Human Resources Command (AHRC) Form 249-E (Chronological Statement of Retirement Points), dated 17 March 2014
* orders, dated 18 May 2012
* two pages titled "Post-9/11 GI Bill Transferability"

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the ARNG, the applicant was appointed as a second lieutenant in the Ohio ARNG on 7 December 1995.  He served in staff and leadership positions and he attained the rank/grade of major (MAJ)/O-4 on 17 November 2004.

2.  In 2003, he transferred as a Reserve officer to the NCARNG.  He was assigned to Headquarters and Headquarters Company (HHC), 130th Maneuver Enhancement Brigade, NCARNG, Charlotte, NC.

3.  He was honorably released from the NCARNG on 31 July 2009 in the rank of MAJ and he was transferred to the USAR Control Group (Reinforcement).  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for this period of service shows he completed 21 years and 6 months of qualifying service for Non-regular retirement.

4.  AHRC Orders C-05-207347, dated 18 May 2012, released him from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve effective 18 May 2012 by reason of nonparticipation.

5.  Public Law 110-552 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits and limited eligibility to members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

6.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible family 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 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.

7.  A member of the Armed Forces is eligible to transfer educational benefits to family members if they:

	a.  have eligible family members enrolled in the Defense Enrollment Eligibility Reporting System (DEERS).  Children lose eligible family member status upon turning 21 years of age, 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;

	b.  initially request the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  Once the benefits are transferred, children may use the benefits up to the age of 26.

8.  A Soldier not serving on active duty or as a member of the Selected Reserve who subsequently requests transfer of unused benefits to family members should not be granted relief based on unawareness of law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, 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.

9.  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 serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be allowed to transfer his Post-9/11 GI Bill educational benefits to his family members because he was unaware of the requirement to do so while he was serving in the NCARNG and USAR.

2.  The evidence of record confirms the applicant served continuously in the ARNG until he was transferred to the USAR Control Group on 31 July 2009 in the rank of MAJ.  He was transferred to the Retired Reserve on 18 May 2012.  This was almost 3 years after implementation of the program and almost 3 years after the TEB online database was operational.  He would have been eligible to transfer his unused educational benefits to any eligible family members enrolled in DEERS; however, there is no evidence that he did so while he was serving in the Selected Reserve. 

3.  Notwithstanding his sincerity that he was not aware of the requirements to transfer his education benefits prior to his retirement, DOD, the 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.

4.  The requirement to transfer benefits while a member is serving 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 benefits to his family members while serving in the Selected Reserve as required by law, there is an insufficient evidentiary basis for granting him the requested relief.

________  ________  ________  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 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)                                         AR20140014094



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ABCMR Record of Proceedings (cont)                                         AR20140014094



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