IN THE CASE OF:	  

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140016812 


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 to his family members under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

   a.  he transferred his benefits before he retired from active duty and the Ebenefits website confirmed this information at the time of his retirement; and
   
   b.  he checked the Ebenefits website two years prior to his first son's graduation and the TEB was no longer there.

3.  The applicant provides a witness statement in support of his claim.

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 30 October 1990 and he held military occupational specialty 11C (Indirect Fire Infantryman).  He served in a variety of stateside and/or overseas assignments and he attained the rank of sergeant first class (SFC)/E-7.

3.  On 31 October 2011, he was retired by reason of sufficient service for retirement. He was placed on the Retired List in his retired rank/grade of 
SFC/E-7 on 1 November 2011.  He completed 21 years and 1 day of active service. 

4.  During the processing of this case, a staff member of the Board contacted the Army Continuing Education Division, Army Human Resources Command (HRC), to ascertain if the applicant transferred his education benefits prior to his retirement. The Team Lead, Finance and Incentives Branch, HRC, provided:

	a.  When applying for TEB, a Soldier must first apply to the Department of Defense via the TEB portal or milconnect website.  Later when the dependent wants to use the benefit, the dependent must apply to the VA using the Veterans Online Application (VONAPP) portal.

	b.  The TEB-Service Representative website shows the applicant did not request transfer before retirement.  He was approved for retirement on 4 March 2011 with a retirement date of 31 October 2011, but was not approved for TEB because a TEB request was not submitted.  If the applicant has a printed screenshot showing otherwise, he needs to make that document available.

5.  On 7 May 2015, a staff member contacted the applicant to obtain a computer print-out, screenshot, or any proof he possessed verifying his claim that he transferred his education benefits prior to his retirement.  On 11 May 2015, the applicant provided a witness statement from an individual who indicates he was the applicant's first sergeant (1SG) during the time of the applicant's retirement.  The 1SG states:

* he recalls the applicant completing the online request for transfer of his Montgomery GI Bill benefits to his two dependent sons (50 percent each) sometime in the spring of 2009
* he personally contacted the applicant and other Soldiers who were interested in transferring their GI Bill benefits to their dependents and instructed them to go to their main office on that day to complete their request
* he can vouch that the applicant completed this requirement and can be reached by phone or email if necessary

6.  A review of the witness's record confirms he was the applicant's 1SG during the time of his retirement.  The applicant's record also shows the witness served as his rater on his noncommissioned officer evaluation report during the periods 2 March 2009 to 1 March 2010 and 2 March 2010 through 1 March 2011.

7.  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.  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 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.

	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 pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.

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 for the maximum amount of time allowed by such policy or statute, or

9.  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 contends he completed the TEB requirement  prior to his retirement on the Ebenefits website and provides a letter of support from his former 1SG at the time, who supports his claim.  However, there is no evidence in milconnect, the official DOD website used to request TEB, to verify this claim.  In addition, absent the letter of support he provides, he also does not provide any conclusive evidence to show he completed this requirement prior to his retirement from active duty.

2.  The applicant was eligible to transfer his education benefits under the TEB prior to retirement, but there is no evidence he did so while still on active duty.  The program was implemented in July 2009 and he retired on 31 October 2011.

3.  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.

4.  The applicant continued to serve until he retired in October 2011.  His service and his sincerity are not in question; however, because the applicant has been on active duty since the program was implemented in August 2009, nearly 20 months after the program was implemented, he had sufficient time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.

5.  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 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)                                         AR20140016812





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ABCMR Record of Proceedings (cont)                                         AR20140016812



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