IN THE CASE OF:	  .

		BOARD DATE:	   30 June 2015 

		DOCKET NUMBER:  AR20140019627 


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 his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  He also requests a personal appearance before the Board.

2.  The applicant states:

	a.  He is a 100-percent disabled veteran with over 21 years of active service.  He left the service involuntarily due to extensive combat injuries.  Prior to leaving active service, he submitted a request to transfer his education benefits to his dependents as soon as he was able to do so.  When his spouse tried to use the benefits, she was denied by the Department of Veterans Affairs (VA).  He earned those benefits and he believes he should be able to transfer them to his family member(s). 

	b.  He understands that if the member is retirement eligible, then there is no additional service obligation.  If the veteran is less than 4 years from becoming retirement eligible, then the veteran just needs to finish the years remaining to retirement eligibility.  For example, if the member had 18 years, then he or she would need to complete 2 more years.  He had over 20 years of active service at the time he requested the transfer.  He was ineligible for reenlistment because of his combat injuries.  

	c.  He contacted the VA and was told since the service (Army) failed to transfer his benefits, he would need to get his records corrected before finds could be disbursed.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 19 September 2011
* Printout of Transfer Request, dated 16 September 2011
* Letters, dated January 2013, from the VA

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 31 July 1990.  He held military occupational specialties 12B (Combat Engineer) and 38B (Civil Affairs Specialist). 

2.  He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

3.  On 23 June 2011, Headquarters, U.S. Army Garrison, Fort Bragg, NC, published Orders 174-0259 releasing him from active duty on 19 September 2011 and placing him on the temporary disability retired list (TDRL) effective 20 September 2011.  

4.  It appears on 16 September 2011, using the DOD TEB website, he submitted a TEB request.  He listed his wife, Sandra, and 2 children (Mickael and Tiana).  He allocated 1 month of benefits to his spouse and to each of his children.  He also indicated that: 

* he is eligible for the Post 9-11 GI Bill, the program he is applying the transfer
* he understands he may transfer up to 36 months of his education benefits to his spouse and/or children and can modify or revoke his election at any time
* he understood and agreed to remain in the Armed Forces for the period required and that failure to complete his service could lead to an overpayment by the VA for any payments made he 

5.  The letter from DMDC confirming his approval and service termination date is not available for review with this case.  

6.  He retired on 19 September 2011 and he was placed on the TDRL in his retired rank/grade of SFC/E-7 on 20 September 2011.  His DD Form 214 shows he completed 21 years, 1 month, and 19 days of active service. 

7.  On 15 January 2013, by letter to the applicant's spouse, the VA stated that the claim for Post 9/11 GI Bill benefits is denied because the Army has indicated that the applicant had neither applied for nor been approved for the transferability program.

8.  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 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, Department of Defense (DOD), and 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.  

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.

10.  Title 38, U.S. Code, section 3319, prohibits service members no longer on active duty from transferring educational benefits.  The legislation specifically states "an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed."  

11.  Soldiers with at least 6 years, but less than 10 years of service who are in the Integrated Disability Evaluation System (IDES) process are not permitted by the U.S. Army Retention policy to extend or reenlist for the additional four year service obligation.  As such, an exception to policy (ETP) is required to be approved to enable the Soldier to extend or reenlist.  

	a.  To initiate an ETP request, a Soldier must contact their servicing Career Counselor to request the initiation of an ETP request to extend or reenlist in order to meet the additional service obligation.  The ETP request must be approved and the Soldier must extend or reenlist for the additional 4-year service obligation prior to the PEB finding that the Soldier is physically unfit on DA Form 199, block 9 (emphasis added). 


	b.  The career counselor must process the ETP request to the Enlisted Professional Development Branch (policy proponent for retention and the Post 9/11 GI Bill) of the Army G-1, Director of Military Personnel Management, Enlisted Career Systems Division.  Upon ETP approval, the career counselor will assist the Soldier in extending or reenlisting, and submitting the TEB request.

12.  Soldiers with 10 years or more of qualifying service who are in the IDES process are not permitted by U.S. Army retention policy to extend or reenlist for the additional four year service obligation. No ETP is required to be approved, however, for Soldiers in this category.  They are to submit a request for transfer of benefits once the medical separation order has been provided but before the effective date shown on the medical separation order.  Requests for transfer are submitted to HRC along with a copy of the medical separation order.  Upon approval, HRC adjusts the TEB service obligation to meet the date of medical separation.  

13.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  While on active duty, the applicant submitted a request to transfer his education benefits under the TEB.  He allocated 1 month to each of his three family members (spouse and two children).  He provided the DMDC printout that confirmed he submitted this request prior to his retirement.  

3.  The applicant had over 20 years or more of qualifying service when he entered the IDES.  He was neither permitted nor required to reenlist or extend because he was already retirement eligible by reason of having sufficient service for retirement.  More importantly, he did submit a request while still on active duty.  

4.  There is sufficient evidence to show an error in the applicant's transfer of benefits processing.  In view of the foregoing, he is entitled to the requested relief.  His records should be corrected to show his TEB transfer request was processed and approved prior to his retirement, provided all other criteria is met. 

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his eligible family member(s) prior to his retirement, provided all other program eligibility criteria are met.



      _______ _   __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)                                         AR20140019627





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ABCMR Record of Proceedings (cont)                                         AR20140019627



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