IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150004453 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 members under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states the Department of Veterans Affairs (VA) Regional Office in Muskogee, OK does not have this document to process the education benefit that his son needs. He was under the assumption that all filing that was required for his son to receive the benefit was completed prior to his enrollment in 2012 at Schreiner University. There had been no error detected until the Spring 2015 semester when filing for the benefit. This would be his son's last semester of his undergraduate degree. 3. The applicant provides: * A letter from the VA * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Retirement orders 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. Having had prior service in the Regular Army (June 1985 to June 1993) and the Texas Army National Guard (June 1993 to December 2000), the applicant enlisted in the U.S. Army Reserve (USAR) on 4 February 2005. 3. He entered active duty on 14 November 2008 and served in Iraq from 15 March 2009 to 13 November 2009. 4. On 1 July 2010, a physical evaluation board (PEB) convened and found his medical condition (lumbar and thoracic spine spondylosis) unfitting. The PEB rated his condition at 20 percent and recommended his separation with entitlement to severance pay. He concurred. 5. On 24 March 2011, the U.S. Army Human Resources Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 6. He was honorably discharged from active duty on 9 May 2011 by reason of disability. His DD Form 214 shows he completed 2 years, 5 months, and 26 days of active service during this period. 7. There is no indication in his records and he provides none to show he transferred Post 9-11 GI Bill educational benefits to his dependent(s) while on active duty or the Selected Reserve. 8. He provides a letter, dated 15 March 2015 from the VA to his son that essentially denied his son's claim for the Post 9-11 GI Bill because the Army did not indicate his father (the applicant) had been approved for the transferability program. 9. 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 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) 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, DOD, and the VA initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and 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 anytime, 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. 10. 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 may transfer benefits if, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, the member 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 11. 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 was eligible to transfer his education benefits under the TEB prior to his discharge, but there is no evidence he did so while still on active duty or in the Selected Reserve. The program was implemented in August 2009 and he was discharged on 9 May 2011. 2. The Army, DOD, and VA conducted massive public campaigns that generated major 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 he was discharged in May 2011. His service and his sincerity are not in question; however, since the applicant has been on active duty since the program was implemented in August 2009, nearly 20 months 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 of this program are set in the law and any changes to the law are not within the purview of this Board. He provides insufficient evidence of an error or an injustice. 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) AR20150004453 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004453 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1