BOARD DATE: 16 February 2016 DOCKET NUMBER: AR20150007520 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 transfer of his educational benefits to his eligible dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. His multiple requests to transfer his education benefits to his eligible dependents were denied. The current Department of Defense (DOD) policy states the service member must commit to an additional 4 years of service. He was selected for early retirement under the Enhanced - Selective Early Retirement Administrative Board (ESERB) and was unable to serve the additional 4 years. b. He served honorably for 22 years and did three deployments to Kosovo, two deployments to Iraq, and a deployment to Afghanistan. He was never given the option to transfer his benefits from the Montgomery GI Bill (MGIB) to the Post-9/11 GI Bill. His family had expected and planned to use the education benefits for their eligible children. He served the initial requirement of 10 years of honorable service and retired on 30 April 2015 after 2 decades of service. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), Officer Record Brief (ORB), orders, a letter, and DD Form 2366 (MGIB Act of 1984). CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was appointed as a second lieutenant Reserve officer on 16 December 1999 with a concurrent call to active duty. The U.S. Army Human Resources Command (HRC) Soldier Management System (SMS) shows his mandatory retirement date (MRD) was 31 December 2024. He served through a variety of assignments and was promoted to the rank/grade of major (MAJ)/O-4 in the Regular Army on 2 September 2009. 2. His record contains a DD Form 93 (Record of Emergency Data), dated 22 February 2013, wherein it shows he was married at the time and had four dependent children, born on 30 April 1997, 14 August 1998, 27 July 2003, and 10 October 2005, respectively. 3. The applicant provides a letter, dated 30 July 2014, wherein he was notified by HRC that he had been selected for mandatory early retirement and his MRD was now 31 April 2015 (i.e., 30 April 2015). 4. He was honorably retired on 30 April 2015 in the rank of MAJ and he was transferred to the Retired List on 1 May 2015. 5. In the processing of this case an advisory opinion, dated 26 October 2015, was received from the Chief, Finance and Incentives Branch, HRC. The advisory official recommended disapproval of the applicant's request and stated: a. Public Law 110-552 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The applicant should not be granted relief because he did not transfer his education benefits before he was selected [for early retirement] by the Fiscal Year 2014 (FY14) ESERB on 30 July 2014. b. To transfer Post 9/11 GI Bill education benefits to dependents, an individual must be serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, have at least 6 years of eligible service, have no current negative flag, commit to the service obligation, and transfer the benefits to the dependent through the TEB website. All benefits must be transferred before the member separates or retires. Public law, implementation instructions, and DOD directives make no provisions for waving this requirement. c. Additionally, Soldiers considered for the FY14 ESERB were advised of GI Bill actions in Military Personnel (MILPER) Message 13-357, paragraph 15. If the applicant had requested TEB before the FY14 ESERB release date, he would have incurred a 4-year TEB service obligation which their office would later have adjusted to his ESERB release date showing a fulfillment of the TEB service obligation. The FY14 ESERB release date was 30 July 2014. The applicant requested transfer of his education benefits on 2 December 2014, 5 January 2015, and 25 March 2015 and their office rejected his TEB requests on 11 December 2014, 7 January 2015, and 26 March 2015, respectively, due to his not requesting TEB prior to the release date of 30 July 2014. d. Available to the applicant during the 5 years before his ESERB selection were the Defense Directive Type Memorandum (DTO) 09-003, dated 22 June 2009; the U.S. Army Post 9/11 GI Bill Memorandum, dated 10 July 2009; and counseling opportunities at the various Army installation education centers. Information provided before and after the release of the implementation instructions was highly publicized. 6. MILPER Message 13-357, Title: FY14 Officer Separation Boards (OSB) and ESERB, MAJ, Army Competitive Category (ACC), was issued on 6 December 2013. 7. On 30 November 2015, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; no response was received. 8. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible member 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: 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 (emphasis added); 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 the maximum amount of time allowed by such policy or statute; or c. 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 duty or 20 qualifying years of Reserve service. d. has eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS). Children lose eligible family member status upon turning 21 years of age 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; and e. initially requests the transfer through the DOD TEB online database. This database was operational on 29 June 2009. Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA). Once the benefits are transferred, children may use the benefits up to age 26. 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, 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 requests the transfer of his educational benefits to his eligible dependents under TEB. 2. The evidence of record confirms the applicant was fully eligible to transfer his educational benefits under the TEB prior to the release date of the FY14 ESERB but he failed to do so. The program was implemented in July 2009 and the release date of the FY14 ESERB was 30 July 2014. Prior to 30 July 2014, when he would have been eligible to extend his service obligation by 4 years, he did not apply for the transfer of his educational benefits. 3. The DOD, 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. While there may have been some confusion during the early stages after the implementation, the applicant did not retire until well over 5 years after the program was implemented. 4. In addition, in the MILPER message released in December 2013 he was reminded of the requirement to elect to transfer his education benefits prior to the release date of the ESERB results. However, as confirmed by the advisory official, he did not submit a TEB request until 2 December 2014, after he had been selected for mandatory early retirement resulting in a change of his MRD to 30 April 2015 and his request was properly denied. There is no evidence of error or 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) AR20150007520 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007520 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1