IN THE CASE OF:  	  

		BOARD DATE:  21 May 2015	  

		DOCKET NUMBER:  AR20140017881 


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 family members.

2.  The applicant states his spouse and children are ineligible for his education benefits under TEB.  He was medically retired and had no choice in the matter.  He shouldn't lose his benefits because he was retired.  After he retired, he switched to the Post-9/11 GI Bill because the Department of Veterans Affairs (VA) Battle Creek, MI, said he could transfer his benefits to his spouse.

3.  The applicant provides three pages titled Education and Training - Post-9/11 GI Bill (Chapter 33) Payment Rates for 2013 Academic Year (August 1, 2013 - July 31, 2014).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 July 2001.  He served through multiple reenlistments and/or extensions and was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 September 2009.  His last duty assignment was with the 1st Air and Missile Defense Battalion, 44th Air Defense Artillery, Fort Hood, TX.

2.  His records contains a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 1 April 2011, wherein it shows on that date he received the required counseling on various military programs to include education benefits.  The applicant and the transition counselor both signed this form on 1 April 2011.

3.  On 11 October 2012, an informal Physical Evaluation Board (PEB) convened and confirmed his unfitting disabilities of plantar fasciitis (right foot) and plantar fasciitis (left foot).  The PEB found his physical impairments prevented the reasonable performance of his duties, recommended a combined rating of 30 percent, and that he be placed on the Permanent Disability Retired List (PDRL).

4.  He was honorably retired from active duty on 26 January 2012 in the rank of SSG by reason of permanent disability and he was placed on the PDRL on 27 January 2012.  

5.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he had 10 years, 6 months, and 17 days of creditable active service.

6.  On 21 March 2014, the applicant contacted the U.S. Army Human Resources Command (HRC) to inquire about how to transfer his Post-9/11 GI Bill education benefits to his family members under TEB.  The HRC official informed him that he was not eligible to do so since he was no longer on active duty.

7.  Public Law 110-252 establishes legal limitations on the transferability of unfunded Post 9/11 GI Bill benefits and limits eligibility to 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.  A Soldier must have 6 years of eligible service to transfer the benefits to a spouse and 10 years to transfer the benefits to eligible children.  

	b.  A Soldier must have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System.  Children lose eligible family member status upon turning 21 years of age, or at marriage.  

	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 Department of Veterans Affairs (DVA) 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 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 DVA.  The respective dependent must then submit the application for VA education benefits. 

	e.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service they are not authorized to transfer unused benefits.

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 disability retirement on 26 January 2012.  As he had over 10 years of active duty service, he would have been eligible to transfer any unused education benefits to his eligible family members through the TEB database.  However, there is no evidence that shows he did so while he was serving on active duty.  

2.  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 well over 2 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)                                         AR20140017881





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ABCMR Record of Proceedings (cont)                                         AR20140017881



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