IN THE CASE OF:  	  

		BOARD DATE:  3 September 2015	  

		DOCKET NUMBER:  AR20150000720 


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 educational benefits to his family member under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.  He also requests a personal hearing.

2.  The applicant states:

* he retired from active duty in December 2011; in the summer of that year upon his transfer to the Joint Staff and subsequent decision to retire, he submitted an online application to transfer the benefit
* he recalls a conversation with his office mate about making sure they utilized the transfer option 
* at the time of this transfer, he did not receive any indication or notification that his request was not complete
* he remained unaware of his ineligible status until recently as he did not believe he needed to confirm the success or failure of the on-line request
* he assumed the transfer process was pro forma and did not receive notice of a denial
* as his child was 10 years old at the time, he had no reason to question the benefit
* he contacted the Department of Veterans Affairs (VA) and the Army and both indicated there was no record of his submission 
* he is 100 percent sure he submitted a request; both agencies indicated there are other Soldiers who have contacted them with similar issues 
* he did not seek employment for a whole year after retirement and if he was planning to use this benefit for his own, he would have taken advantage of this benefit to secure a degree 

3.  The applicant provides the front page of a milConnect webpage printout that is undated. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 1 June 1989.  He entered active duty on 27 September 1989. 

2.  He served on active duty as a Regular Army officer in a variety of stateside or overseas assignments and he attained the rank of lieutenant colonel (LTC). 

3.  He retired on 31 December 2011 and he was placed on the Retired List in his retired grade of O-5 on 1 January 2012.  He was credited with over 22 years and 3 months of active service. 

4.  He provides the front page of an undated milConnect webpage printout.  This printout lists his spouse and child and their birthdates with the words "ineligible" next to each name.  In addition the webpage printout contains a message from his Service Component that states "Our records indicated that you may not be eligible to transfer education benefits."  

5.  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 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 Dependent Eligibility Enrollment Reporting System (DEERS).  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 in service the Soldier had 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 which is the first 90 days of the program.  The Army, Department of Defense (DOD), and Department of Veterans Affairs (VA) initiated a public campaign plans that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits.  

	g.  A Soldier must have initially requested 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 electronically to the VA for their 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 Soldier leaves military service, provided the Soldier allocates at least 1 month of benefits prior to his or her separation.  If the Soldier allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits post service.  

6.  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.

7.  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.

8.  There is a provision on the milConnect DoD TEB Web application that shows once a transfer request is submitted it continuously shows the status "Submitted" until the transfer is approved or rejected.  Once a request is approved, the status will be updated to "Request Approved" and the status date will be set to the date the Service Representative approved the request.  An approval form also become available once a TEB request is approved.  There is an option to print the approval form so a Soldier can maintain a copy of the approval for his or her personal records. 

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible to transfer his education benefits under the TEB prior to retirement, but there is no documentary evidence he did so.  The program was implemented in July 2009, with an effective date of 1 August 2009, and he retired on 31 December 2011.  As evidence to support his application, he provided a milConnect form that shows he was not eligible to transfer the benefits to his spouse and child.   

2.  The Army, DOD, and VA conducted public campaigns that generated communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify for transfer of benefits to an eligible family member; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The applicant continued to serve until December 2011.  His service is not in question; however, since the applicant had been on active duty since the program was implemented in August 2009 and then for over 2 years after the program was implemented, he had sufficient time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence. 

4.  The requirements for this program are embedded in the law and a change to the law is not within the purview of this Board.  There is neither evidence of an error nor an injustice in the applicant's transfer of benefits processing.  Further, there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of justice in this case.  In view of the foregoing, he should not be granted 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)                                         AR20150000720



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ABCMR Record of Proceedings (cont)                                         AR20150000720



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