IN THE CASE OF:  	  

		BOARD DATE: 14 July 2015	  

		DOCKET NUMBER:  AR20140020961 


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, correction of his records to show he elected to transfer educational benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* he was informed by a Department of Veterans Affairs (VA) representative that he had to be serving on active duty in order to transfer his benefits and that he was supposed to reenlist for an additional 4 years
* he was unaware and no one told him prior to his retirement that he had to be serving on active duty in order to transfer his benefits
* he served his country for 23 years
* he reenlisted in 2004 indefinitely until 2023 (should read 2025) while serving in Iraq

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* U.S. Army Human Resources Command (HRC) Orders C-01-100775, dated 18 January 2011
* HRC Reserve/Retiree/Veteran Record extract



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 U.S. Army Reserve (USAR) on 19 September 1984.

3.  On 10 July 2004, he reenlisted for an indefinite period which allowed him to serve until 2025, the maximum year of service for his current rank of master sergeant at the time or his maximum age, whichever came first.

4.  On 19 October 2006, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  He served multiple periods of active duty and he was last ordered to active duty in support of Operation Enduring Freedom during the period 5 February 2009 through 4 February 2010.  His records are void of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period.

6.  HRC Orders C-01-100775, dated 18 January 2011, show he was released from the USAR Control Group (Reinforcement) and transferred to the Retired Reserve for non-participation effective 14 January 2011.  It is unknown when the applicant was transferred to the USAR Control Group (Reinforcement).

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 as a member of the Selected Reserve.

	a.  A Soldier must be currently serving on active duty or as 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 benefits to eligible family members.  To be considered an eligible family member, the spouse or child must be enrolled in Defense Enrollment Eligibility 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 these 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 at the time of the election to transfer benefits.

	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 public campaign plan that generated 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 using 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 any time, 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 educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.

9.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The DOD 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.

10.  The DOD 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

11.  Requests to transfer Post-9/11 GI Bill benefits to eligible dependents are submitted through the Defense Manpower Data Center (DMDC) web application.

12.  Military Personnel Message Number 13-102, dated 15 April 2013, subject:  Post-9/11 GI Bill TEB 4-Year Service Obligation for Approved TEB Requests Submitted on/after 1 August 2013, was issued to emphasize that all TEB requests submitted on or after 1 August 2013 would incur a 4-year service obligation from the TEB request date regardless of years in service (except when precluded by policy or statute from committing to an additional 4 years).

13.  Title 38, U.S. Code, section 3319, prohibits service members who are 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."

DISCUSSION AND CONCLUSIONS:

1.  Although it is unclear when the applicant was transferred to the USAR Control Group (Reinforcement), he was eligible to transfer his educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill during the period 5 February 2009 through 4 February 2010 while he was serving on active duty or any time thereafter while he was still a member of the Selected Reserve provided he committed to serve 4 additional years in the Armed Forces from the date of election, but there is no evidence he did so.  The program was implemented on 1 August 2009 and he transferred to the Retired Reserve on 14 January 2011.

2.  Information on the Post-9/11 GI Bill was widely available when he transferred to the Retired Reserve and, as part of his retirement processing, he was required to receive counseling on his Post-9/11 GI Bill benefits.  He has not provided any documentary evidence indicating he was improperly counseled.  Further, there is no evidence that he followed the established procedure by submitting an application through the DMDC web application while he was a member of the Selected Reserve.  By the time he was transferring to the Retired Reserve, this was a well-established and well-publicized procedure.  It remains the only way to apply for transfer of educational benefits.

3.  In the absence of evidence indicating he was unfairly deprived of the opportunity to transfer his educational benefits prior to transferring to the Retired Reserve, there is an insufficient basis upon which to grant 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 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)                                         AR20140020961



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ABCMR Record of Proceedings (cont)                                         AR20140020961



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