IN THE CASE OF:  	  

		BOARD DATE:  28 April 2015	  

		DOCKET NUMBER:  AR20140016902 


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 unused education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  Specifically, he wishes to transfer the remaining months of entitlement to his eldest son.

2.  The applicant states he was told by the retention noncommissioned officer that as long as he gave each of his family members at least 1 month of eligibility prior to retirement he would be able to move eligibility months as needed.  He was never told if he were to zero someone out it would be permanent.  Had he known he would not have excluded any of his family members.  There should be 6 or 7 months of eligibility remaining when his daughter obtains her bachelor’s degree.  He wants to transfer those remaining months to his eldest son.  He is sure that he is not the only one who did not get the correct information.  It will cost him over $19,000 if he is not allowed to transfer the benefits.  He paid for and earned the eligibility and he should be granted the opportunity to use it for a family member or for himself. 

3.  The applicant provides no additional evidence in support of his request.

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 5 September 1986.   

3.  He retired on 30 November 2011 and he was placed on the retirement list in the rank of master sergeant on 1 December 2011.  He completed 25 years, 
2 months, and 26 days of net active service.

4.  There is no evidence nor does he provide evidence that shows he transferred, or attempted to transfer, a portion of his unused education benefits to his eldest son in accordance with the TEB provisions of the Post-9/11 GI Bill.  
 
5.  On 22 June 2009, the Department of Defense (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.

9.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a service member leaves military service, provided the service member allocates at least 1 month of benefits (to each respective dependent) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an exception to policy to transfer a portion of his unused education benefits to his eldest son.  He contends the transferability requirements were not adequately explained during his transition into retirement.  He acknowledges he transferred benefits to his daughter; however, there is no evidence, nor does he submit any evidence, which shows he attempted to transfer his unused education benefits to his eldest son prior to separation.  

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, the applicant retired over 2 years after the program was implemented.

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)                                         AR20140016902



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ABCMR Record of Proceedings (cont)                                         AR20140016902



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