IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150001056 


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 approval to transfer his educational benefits under the provisions of the Post-9/11 Transfer of Benefits (TEB) program to his dependents.  

2.  The applicant states:

	a.  He signed up for Post-9/11 GI Bill in 2012 and he was told his dependents could use this benefit.

	b.  He received a notification for Qualitative Management Program (QMP) in 2013, but his retention noncommissioned officer (NCO) told him not to worry about it affecting the eligibility of his dependents and he didn't need "to file for retain in QMP."  

	c.  When he was clearing, the clearing team and Department of Veterans Affairs (VA) reassured him that it would not affect eligibility so he left the Army.  While his wife was applying to use the Post-9/11 GI Bill, the U.S. Army Human Resources Command (HRC) denied it because he did not fulfill the obligation.

	d.  He believes he was treated unjustly because during the 2012/2013 timeframe, there was not enough guidance on policy published to inform service members.  

	e.  He was misguided by his retention NCO and his chain of command who told him to continue with retirement instead of trying to be retained. 

	f.  If he had known that his dependents would not have been able to use the benefit, he would have requested to be retained to fulfill his service obligation.

3.  The applicant provides a transcript of his conversation with his retention NCO.

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the Regular Army on 31 January 2014 in the rank/grade of sergeant first class/E-7, after completing 20 years and 18 days of creditable active service.  

2.  On 13 December 2012, he submitted his request for voluntary retirement from the U.S. Army with an effective date of 31 January 2014.  

3.  The HRC - Integrated Web Services Transaction List shows he contacted HRC regarding the Post-9/11 GI Bill:

	a.  On 20 February 2013, the representative advised the applicant that he would have to determine whether he was going to withdraw his retirement paperwork or revoke his request to transfer his educational benefits.  He was advised to get his Career Counselor/Retention NCO involved if he still wanted to retire in January 2014 and to find out the process to revoke the benefits and get out of the service obligation.  The representative mentioned that someone who processed his retirement packet must have overlooked his service obligation of 18 January 2016 incurred with the transfer of benefits.  Even if he had gotten out of the Army with an approved transfer request, the service obligation would have precluded his dependents from being approved for the benefits from the Department of Veterans Affairs (VA).  However, if the VA approved the request, they might pay benefits for a while, but they would treat it as an overpayment.  

	b.  On 18 March 2014, the representative advised the applicant that the Buffalo VA Regional Office sent an email to the HRC Education Incentives Branch concerning his Post-9/11 GI Bill transfer and the associated service obligation.  When he elected to transfer the educational benefit to his dependents, he was assigned a service obligation of 18 January 2016.  He retired from the Army on 31 January 2014, which was prior to fulfilling that entire obligation.  The representative informed him that since he didn't fulfill the service obligation, his Post-9/11 GI Bill transfer request was rejected.  His dependents were not eligible to use benefits and could be subject to recoupment by the VA if benefits had already been paid.  Also, he was advised that the Post-9/11 GI Bill is still his to use; however, his dependents are not eligible to use benefits since the service obligation was not fulfilled.  

4.  A review of his personnel documents in the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal his notification of QMP.

5.  He provided a transcript of his conversation with his retention NCO during the period 18 April 2014 through 2 May 2014.  In this transcript, he requested a memorandum from his retention NCO regarding an exception to policy to be sent to HRC.  He stated that he needed the memorandum to inform HRC that he had contacted his retention NCO regarding his QMP and the Post-9/11 GI Bill when he returned from Afghanistan.  He informed his retention NCO that the date on his QMP was 9 November 2012.  His service record does not contain the requested memorandum.

6.  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 Defense Enrolment 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 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 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 education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for approval to transfer his educational benefits under the provisions of the Post-9/11 TEB program to his dependents has been carefully considered.  However, his service record is void of sufficient evidence to substantiate that an error or injustice exists in this case.

2.  Based on DOD policy, an individual is eligible to transfer educational benefits to eligible family members after 1 August 2009 who at the time of the approval of the individual's request to transfer entitlement to educational assistance 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.  

3.  The applicant contends that he believes he was treated unjustly because in 2012/2013 there was not enough guidance published to inform service members.  However, the DOD, VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues when the program was initiated and information on the program has been readily available since that time.  

4.  The applicant also contends that he was misguided by his retention NCO and his chain of command, who told him to continue with retirement instead of trying to get retained.  However, his service record is void of sufficient evidence to substantiate his claim.  

5.  The applicant retired on 31 January 2014, which is prior to fulfilling the active service obligation of 18 January 2016.  Therefore, he did not meet the eligibility criteria to transfer his Post-9/11 GI Bill benefits to his dependents.  

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)                                         AR20150001056



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ABCMR Record of Proceedings (cont)                                         AR20150001056



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