IN THE CASE OF:	

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003970 


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 an exception to policy to transfer his education benefits to his sons under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states –

* he served in Iraq in 2003
* he has kept a watchful eye on his education benefits and was excited about the transferability of the benefits to his son
* he retired from the Massachusetts Army National Guard (MAARNG) in 2009 after 23 years of service
* to his knowledge the TEB had not been signed into law until 2010
* he was not informed at any of his exit briefings that he needed to designate a dependent to transfer his education benefits to before he retired
* he now sees that to transfer benefits one must still be in active service
* he asks how would he have been able to do that with the law not signed prior to his retirement
* his family was counting on this benefit and if he is not eligible, it will put immense financial hardship on his family 

3.  The applicant provides no supporting documentation.



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 15 January 1986.

3.  The applicant was ordered to active duty on 28 April 2003 in support of Operation Iraqi Freedom in the rank and pay grade of staff sergeant/pay grade
E-6.  He served in Kuwait and Iraq from 26 June 2003 through 19 December 2003.  He accepted an appointment as a USAR warrant officer effective 26 March 2004 after he attended the Warrant Officer Candidate School in an active duty status.  He was released from active duty on 3 July 2004 and he was reassigned to a USAR troop program unit (TPU).  He had served 1 year, 2 months and 6 days of active service.

4.  He received a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) from the U.S. Army Human Resources Command on 19 February 2009.

5.  He requested a conditional release from his USAR unit on 23 February 2009 to accept an appointment in the MAARNG.  His request for conditional release was approved by the USAR.  He accepted an appointment in the MAARNG as a chief warrant officer two (CW2)/W-2 on 19 October 2009.

6.  On 15 April 2010 he was promoted to chief warrant officer three (CW3)/pay grade W-3 by Orders 106-019 issued by the MAARNG on 16 April 2010.

7.  As a member of the MAARNG, he received a second Twenty-Year Letter on 1 July 2010.

8.  The available record does not contain copies of his out-processing or retirement counseling from the MAARNG.

9.  The applicant was honorably separated from the MAARNG on 30 November 2010 with a total of 24 years, 10 months, and 16 days of service for pay and exactly 20 years of service for retired pay.  He was assigned to the Retired Reserve by Orders 334-062 issued by MAARNG on 30 November 2010.  He was retired in the rank of CW3.

10.  In similar cases the Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, has advised 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, Department of Defense (DOD), and the Department of Veterans Affairs (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 education benefits prior to separation or retirement.  They also provided the following regulatory citations and eligibility information:

	a.  Public Law 110-252 established the legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Section 3020, 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.  

	b.  DOD established its criteria for eligibility and transfer of unused educational benefits to eligible family member on/or about 22 June 2009.  

	c.  A Soldier must currently be on active duty or a member of the Selected Reserve at the time of the transfer of education benefits to his or her dependent(s) on or after 1 August 2009.  

	d.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children.  

	e.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  Eligible dependent 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); the child will lose eligibility status upon less than full-time status or graduation.  Once the benefits are transferred, children may use the benefits up to age 26.  

	f.  A Soldier must agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  Soldiers who are qualified for retirement do not incur any additional service obligation.

	g.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  

	h.  A Soldier must initially request to transfer benefits on the Department of Defense's 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.  

	i.  Changes to the number of months allocated to dependents can be made at any time, to include once you leave 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.  

	j.  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 enacted on 30 June 2008.

DISCUSSION AND CONCLUSIONS:

1.  The DOD, the VA, and the Army conducted a public campaign plan 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 to transfer benefits to an eligible dependent.

2.  The available evidence shows the applicant was in an active status in the Selected Reserve at the time the TEB went into effect in 2009 and was fully eligible to transfer his educational benefits under the TEB prior to retirement in November 2010 but he did not do so.  

3.  Although the applicant states he retired in 2009, he did not actually retire until 30 November 2010, over a year after the implementation of TEB.
4.  Further, by his own statement, he was tracking the TEB program prior to its implementation; therefore, he was or should have been aware of the legislative and regulatory requirements for transfer of his education benefits.  There is no evidence that, prior to retirement, he applied for transfer of benefits as required by law or that he was unjustly deprived of the opportunity to apply.

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)                                         AR20150003970



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ABCMR Record of Proceedings (cont)                                         AR20150003970



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