IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150001141 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 unused educational benefits to his eligible children under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in effect, when he retired he transferred his education benefits to his wife. He did not know about the rule that provides that at least 1 month of benefits had to be transferred to each eligible dependent at the time he retired. His children have not been able to use his education benefits. 3. The applicant provides no additional evidence in support of his request. 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 retired from the Regular Army on 30 September 2010, due to sufficient service for retirement, after completing 20 years, 9 months, and 8 days of creditable active service. 3. A page from the TEB online database shows his wife, STW, was listed as receiving 1 month of educational benefits under the Post 9/11 GI Bill. His son and daughter's name were listed as receiving zero months. 4. The Department of Defense (DoD) established the criteria for eligibility and transfer of unused education benefits to eligible family members on 22 June 2009. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her 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. 5. Public Law 110-252, section 3020, limits eligibility to transfer unused educational benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her family members. 6. Changes to the amount of months allocated to family members can be made at any time, to include once a service member leaves military service, provided the member allocates at least 1 month of benefits prior to separation. If the service member allocates zero months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 7. The DoD, Army, 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 educational benefits. DISCUSSION AND CONCLUSIONS: 1. The applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retirement. However, the evidence of record shows that, for whatever reason, he only transferred the benefits to his wife; he did not transfer any educational benefits in the TEB online database to either of his children. 2. Changes to the number of months allocated to family members cannot be made unless the service member allocates at least 1 month to each eligible family member. If the service member allocates zero months and subsequently leaves military service, he or she is not authorized to transfer unused benefits. 3. Notwithstanding his sincerity, DOD, the VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues. The program was implemented on 1 August 2009. The applicant retired on 30 September 2010. The information was published well in advance with emphasis on the criteria. 4. The requirement to transfer the benefits while a member is on active duty is embedded in the law. As the applicant did not transfer or verify the transfer of his benefits to his children while serving on active duty as required by law, there is an insufficient evidentiary basis for granting his 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) AR20150001141 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001141 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1