IN THE CASE OF:  	  

		BOARD DATE:  26 May 2015	 

		DOCKET NUMBER:  AR20140014424


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

2.  The applicant states:

* he received the Post 9/11 GI Bill eligibility notice on 14 November 2009
* he reached his mandatory retirement date on 31 December 2009
* he was never advised that the transfer election must be made before leaving the service
* he assumed that the transfer could be made when needed (like the GI Bill Home Program)
* He tried to transfer his Post 9/11 GI Bill to his daughter at the end of June 2014 and that is when he discovered that he was supposed to make the election before he left the service
* he was informed by the Department of Veteran Affairs (VA) after he retired that the Department of Defense has to make the correction to his Post 9/11 GI Bill in order for him to TEB

3.  The applicant provides his Certificate of Eligibility for the Post 9/11 GI Bill dated 9 November 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant has prior United States Army Reserve (USAR) service.  On 
9 September 1972, the applicant was commissioned and appointed in the Maryland Army National Guard (MDARNG).  He attained the rank/grade of lieutenant colonel (LTC)/O-5.  

2.  On 11 October 1991, the MDARNG 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 31 December 2009, he was transferred to the Retired List.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 40 years, 9 months and 6 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 education benefits to his daughter 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to transfer his education benefits to his daughter.  He contends the transferability requirements were not adequately explained during his transition into retirement from the MDARNG.  He states he thought he was able to transfer the education benefits at any time.  

2.  Notwithstanding his sincerity, the DOD, VA, and the Army conducted a 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 after the program was implemented; therefore, he should have known about the requirements for transfer of education benefits to his daughter.

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)                                         AR20140014424



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