IN THE CASE OF:  

		BOARD DATE: 14 April 2015

		DOCKET NUMBER:  AR20140015220


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 correction of his military records to show he transferred his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to his retirement.

2.  The applicant states he was never told that he had to request TEB prior to retirement.  He was led to believe that as long as he was entitled to an education benefit, he could transfer it to his dependents.  Sometime in early 2010 he went to the education center to request TEB to his daughter and was told that he was not able to do so because he had already left active duty.  He now wants an exception to policy.

3.  The applicant provides no 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.  On 28 July 1987, the applicant enlisted in the Regular Army.  He served continuously and attained the rank of sergeant first class, pay grade E-7.

3.  On 31 December 2009, the applicant retired due to sufficient service for retirement.  

4.  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 education benefits (emphasis added) 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 education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.

	c.  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 Dependent Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.

	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.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The Department of Defense (DOD), the Army, 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 TEB.

	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 education benefits via a VA Form 22-1990e to request to use the benefits.

5.  On 22 June 2009, 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 education 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 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.

6.  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, document accordingly, and maintain records for individuals who receive supplemental education assistance under Public Law 110-252, section 3316.

7.  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.  A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent:  (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) has at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agrees to serve at least 4 additional years from the date of request, unless retirement eligible.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he transferred his education benefits to his daughter under the TEB provision of the Post-9/11 GI Bill because he did not know he had to request this prior to his retirement.

2.  Records show the applicant was eligible to transfer his education benefits under the TEB prior to retirement, but there is no convincing evidence showing he did so.

3.  The program was implemented in August 2009.  The applicant did not retire until 31 December 2009.  Therefore, he had sufficient time to submit his application and to verify that his application was submitted in the proper manner. There is no evidence showing he exercised due diligence.

4.  The requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is neither an error nor an injustice in his case and, as such, there is no basis for granting the applicant's 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 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)                                         AR20130019514



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ABCMR Record of Proceedings (cont)                                         AR20140015220



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