IN THE CASE OF:  	  

		BOARD DATE:  7 April 2015	  

		DOCKET NUMBER:  AR20140014554 


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

2.  The applicant states:

* he was not aware that retirees were not allowed to transfer their educational benefits
* he was deployed to Jerusalem from May 2009 to May 2011 with limited access to Army resources
* he attended a demobilization briefing at Fort Dix, NJ in May 2011 and was told that he was eligible for the Post-9/11 GI Bill benefits and that it was transferable to his dependents
* he was not told about the retiree stipulation
* he applied for the benefit verification using the on line application
* he requested to retire from the U.S. Army Reserve and he did not receive an out-brief, retirement certificate, award or spousal certificate 
* he received retirement orders after repeated inquiries to the USAR unit
* he was instructed that TEB could [not] take place until children were ready to benefit from the program

3.  The applicant provides his 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.  After having had prior enlisted service in the Army National Guard, the applicant was appointed as a Reserve commissioned officer on 11 May 1981.

3.  On 18 December 2002, the U.S. Army Reserve Personnel Command 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.

4.  U.S. Army Human Resources Command (AHRC), St. Louis, MO, issued the following orders ordering him to active duty for operational support with duty at Tel Aviv, Israel:

* Orders A-08-923010, dated 18 August 2009, ordered him to active duty from 24 August 2009 to 23 August 2010
* Orders A-12-033378, dated 3 December 2010, ordered him to active duty from 20 October 2010 to 20 May 2011. 

5.  A DD Form 214, dated 20 May 2011, shows he was honorably released from active duty and transferred to the U.S. Army Reserve.

6.  The AHRC Soldier Management System shows that he was transferred to the Retired Reserve effective 5 November 2011.

7.  There is no evidence showing that he tried to transfer his Post 9/11 GI Bill benefits to his dependents prior to his retirement.

8.  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. 
9.  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 may transfer benefits if, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, he or she is eligible for the Post-9/11 GI Bill and 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 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 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.

10.  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 he did not do so.  The program was implemented in July 2009, with an effective date of 1 August 2009, and he was placed in the Retired Reserve on 5 November 2011.  Prior to his placement in the Retired Reserve, he did not apply for the transfer of benefits while on active duty or in the Selected Reserve.

2.  His contention that he had limited access to Army resources while he was deployed is noted; however, 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.  His service and his sincerity are not in question; however, the applicant was in an active status for more than 2 years after the program was implemented.  There is no evidence indicating that he would have been unable to obtain information on TEB during his deployment or in the months following his deployment but prior to his transfer to the Retired Reserve.  

4.  The requirement to transfer the benefit 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.  Since there is no evidence that shows he attempted 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)                                         AR20140014554





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140014554



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1