IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140018866 


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, in effect, an exception to policy to transfer unused education benefits to her daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  

2.  The applicant states she was not informed of the need to transfer the benefit.  She was not attending drill at the time of her retirement due to being sick with cancer and the issue was never brought to her attention. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored statement
* National Guard Bureau (NGB) Form 55b (Honorable Discharge
   Certificate)
* Page 1 of her Notification of Eligibility for Retired Pay at Age 60 (20 Year
   Letter)
* DD Form 2656-5 (Reserve Component Survivor Benefit Plan Election 
   Certificate)
* Orders 027-531
* a memorandum
* Basic Activities for Soldiers Consult - General




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.  Having had prior active service, the applicant enlisted in the Army National Guard (ARNG) on 27 May 1994, attaining the rank/grade of sergeant/E-5 on        3 March 2007.  

3.  On 1 September 2006, the Alabama Army National Guard (ALARNG) issued her a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter).  This letter notified her that she had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  On 13 June 2011, she was honorably discharged from the ALARNG and transferred to the Retired Reserve.  An NGB Form 22 (Report of Separation and Record of Service) shows she completed 24 years, 3 months and 10 days of total service for pay.

5.  A review of her records reveals no evidence nor does she provide evidence that shows she transferred, or attempted to transfer, her unused education benefits to her daughter in accordance with the TEB provisions of the Post-9/11 GI Bill.   

6.  The applicant provides a self-authored statement, dated 20 January 2011, in which she requested a hardship discharge from the ALARNG due to being diagnosed with bilateral cancer in October 2010, and subsequently having a bilateral mastectomy and reconstruction.

7.  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.

8.  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.

9.  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.

10.  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.

11.  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 her Post 9/11 GI Bill education benefits to her dependent daughter.  She contends the transferability requirements were not adequately explained during her transition into retirement. 

2.  Notwithstanding her sincerity with regard to the medical issues which hastened her retirement, the DOD, Department of Veterans Affairs, and the Army conducted a 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 one and a half years after the program was implemented.

3.  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.  Unfortunately, since the applicant failed to transfer the benefit as required by law, there is an insufficient evidentiary basis for granting her 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)                                         AR20140018866



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ABCMR Record of Proceedings (cont)                                         AR20140018866



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