IN THE CASE OF:  	  

		BOARD DATE:  2 April 2015	  

		DOCKET NUMBER:  AR20140014501 


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

2.  The applicant states he submitted a request to transfer 18 months of his Post-9/11 GI Bill to each of his daughters in August 2012 through the Defense Finance and Accounting Service (DFAS) prior to departing active duty.  He did this while he was still assigned as the Senior Military Science Instructor at the University of Wyoming, Laramie, WY.  He was on campus in the Veterans office and had the help of those that work there to navigate him through the website to transfer the benefits to his daughters. 

3.  The applicant provides no additional evidence.

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 17 July 1986.  He served through multiple reenlistments and/or extensions and was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 January 2007.  His last duty assignment was with the University of Wyoming.

3.  Orders 297-170, dated 24 October 2011, issued by Headquarters, U.S. Army Garrison, Fort Knox, KY, assigned him to the Fort Carson Transitions Center, Fort Carson, CO, for pre-separation counseling and outprocessing with a reporting date of 3 May 2012 and a scheduled date of separation of 31 August 2012.

4.  He was honorably retired from active duty on 31 August 2012 in the rank of MSG and he was placed on the Retired List on 1 September 2012.  He completed 26 years, 1 month, and 14 days of creditable active service.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he took transition leave in conjunction with his retirement as he and the Chief, Fort Carson Transition Center signed the DD Form 214 on 3 May 2012.

6.  In the processing of this case, an advisory opinion was received on 4 November 2014 from the Chief, Finance and Incentives Team, U.S. Army Human Resources Command (HRC).  The advisory official recommended disapproval of the applicant's request and stated, in part, that Public Law
110-252 establishes legal limitations on the transferability of unused benefits.  There was insufficient documentation to support his claim of transferring education benefits in the TEB online database before retiring on 1 September 2012.

	a.  A Soldier must be serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 at the time of the transfer of education benefits.  The applicant's last day was 31 August 2012 so he had 3 years to become familiar with when and how to transfer his education benefits.

	b.  A Soldier may only transfer benefits to eligible family members.  To be considered an eligible family member the spouse or child must be enrolled in the Defense 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).  The TEB online database shows he had three eligible dependents enrolled in DEERS.

	c.  A Soldier 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, Department of Defense (DOD), and the Department of Veterans Affairs (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.  The applicant had 3 years to become aware fully aware of when and how to transfer education benefits.  

	d.  A Soldier must initially request the transfer through the DOD TEB online database.  The TEB database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  The respective dependent must then submit the application for VA educational benefits to request to use the benefits.  A review of the TEB online database does not show the applicant attempted to transfer his education benefits.

7.  On 25 November 2014, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received.

8.  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 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.
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 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 evidence of record shows the applicant was serving on active duty until his retirement on 31 August 2012.  He would have been eligible to transfer any unused education benefits to his eligible family members through the TEB database.  However, as noted by the advisory official, there is no evidence that shows he did so while he was serving on active duty.  

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, he did not retire until 3 years after the program was implemented and should have been well aware of when and how to transfer education benefits.  

3.  The requirement to transfer the benefits while a member is 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 he failed to transfer the benefits while serving on active duty as required by law, there is an insufficient evidentiary basis for granting the 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)                                         AR20140014501



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ABCMR Record of Proceedings (cont)                                         AR20140014501



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