IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007851 


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 correction of his records to show his education benefits were transferred to his eligible dependents in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he came out of the Retired Reserve to an active status in a U.S. Army Reserve (USAR) troop program unit in order to obtain this benefit and transfer it to his children.  He served honorably during the required time period and his unit S-1 told him that he was qualified as long as he and his son were in the Defense Enrollment and Eligibility Reporting System. 

3.  The applicant provides his Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) and Orders 11-138-00015 assigning him to the Retired Reserve in May 2011.

CONSIDERATION OF EVIDENCE:

1.  On 20 January 2005, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) based on his enlisted and commissioned service in the Army National Guard and USAR.

2.  On 17 May 2005, Headquarters, 94th RSC issued Orders 5-137-00018, transferring him to the Retired Reserve effective 17 June 2005 in the rank of major due to completion of 20 or more years of qualifying service for retired pay at age 60.

3.  On 19 October 2009, the U.S. Army Human Resources Command (HRC) issued Orders C-10-918619, releasing him from the Retired Reserve and assigning him to the USAR Control Group (Reinforcement) effective the same date.

4.  On 1 March 2010, HRC issued Orders C-03-003086, reassigning him from the USAR Control Group (Reinforcement) to a TPU effective 23 February 2010.

5.  On 18 May 2011, Headquarters, 99th RSC, issued Orders 11-138-00015, transferring him back to the Retired Reserve effective 31 May 2011 due to completion of 20 or more years of qualifying service for retired pay at age 60.

6.  His transaction history in the HRC Integrated Web Services shows on 30 May 2012 an entry was made stating that because he was retired, he was not eligible to transfer his education benefits.  He was told that the Department of Defense (DOD) and Army policy requires a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits.  These policies are based on requirements established in law.  An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement to the individual's family member only while serving in the Armed Forces.  Consequently, the Army does not have the legal authority to grant an exception to policy allowing those who retired or were otherwise separated to transfer Post- 9/11 GI Bill benefits.  He was told that if he re-affiliated himself with a Reserve unit and became an actively drilling TPU service member, or came back on retiree recall orders, he would be able to submit a transfer request that would come to that office for a determination to be made.

7.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further this law 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.

8.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused educational 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, in pertinent part, 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 service or 20 qualifying years of Reserve service.

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.

10.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for the administration of the program.  A Soldier must initially request to transfer benefits on the DOD's TEB online database.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for Department of Veterans Affairs (VA) access.  The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits.

11.  The Department of the Army, Office of the Deputy Chief of Staff, G-1, previously stated that a Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, 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 education benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, there is insufficient evidence to support granting his request.

2.  Evidence shows he served for a qualifying period, was eligible to complete, and could have completed the TEB action necessary to transfer his Post-9/11 GI Bill education benefits to his eligible dependent(s) while serving as a member of the Selected Reserve prior to his transfer to the Retired Reserve on 31 May 2011.  However, he has not provided evidence showing he attempted to transfer benefits prior to leaving military service, that he was given false information by a reliable source about the rules of transferring education benefits, or that he was unfairly deprived of information on the program that was widely disseminated throughout DOD.

3.  It is understandable that he desires to transfer a portion of his education benefits.  However, he is no longer eligible to transfer benefits under the 
Post-9/11 GI Bill transferability program.

4.  To grant him relief at this time would afford him a benefit not afforded to others in similar circumstances.  Accordingly, there appears to be no basis for granting his request.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20140007851



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ABCMR Record of Proceedings (cont)                                         AR20140007851



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