IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150003113 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 son John H_________ under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. He transferred his benefits to his two sons in 2009. The Army Review Board Agency has granted relief for Soldiers who retired or [did not] transfer their education benefits during the first 90 days of implementation (1 August to 1 November 2009) due to the possibility of insufficient publicity. He requested the transfer of his education benefits under the TEB on 20 April 2010, which is after the 90 day implementation phase and he retired on 31 December 2011. b. He was not aware that he had to actually assign a month of benefits to his son in 2009 because his son was still only 14 years old. He didn't read anything that told him he had to do this before retirement, regardless of what was published regarding this policy and it was not addressed when he retired. 3. The applicant provides a one page printout from milconnect.dmdc.mil. 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 active and Reserve service, the applicant was serving in the U.S. Army Reserve (USAR) in the rank/grade of lieutenant colonel (LTC)/O-5 when he entered active duty as a member of the USAR on 12 March 2007. 3. His record contains: a. Two DD Forms 93 (Record of Emergency Data), dated 3 February 2009 and 29 September 2010 respectively, wherein on each form he indicated he was married and had two children; James C.J. R___, born on 24 March 1990, and John H_________, born on 14 April 1995. b. A DD Form 2648 (Preseparation Counseling Checklist), dated 23 August 2011, wherein it shows, in conjunction with his upcoming retirement, he was counseled on that date, in part, on employment assistance, education benefits, health and life insurance, and veterans benefits. 4. He was retired from active duty and the USAR on 31 December 2011 for sufficient service for retirement and placed on the Retired List on 1 January 2012. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of more than 20 years of active duty service. 5. He provides a printout from milconnect.dmdc.mil, printed on 6 February 2015, wherein it shows his TEB status as of 21 April 2010. It shows he selected the Post-9/11 GI Bill to transfer benefits, lists his two children as "ineligible," shows he allocated "0" months to each child, that he was revoking the transfer to his son John C.J. R___, and the request was approved. 6. 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 family 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 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. 7. A member of the Armed Forces is eligible to transfer education benefits to family members if they: a. have eligible family members enrolled in the Defense Enrollment Eligibility 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; b. 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 benefit up to the age of 26; c. changes to the amount 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 (emphasis added). If the service member allocates 0 months and subsequently leaves military service they are not authorized to transfer unused benefits; and d. a Soldier not serving on active duty or as a member of the Selected Reserve and subsequently requests the transfer of unused benefits to family members should not be granted relief based on unawareness of law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of benefits. 8. Public Law 110-252, 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 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 dependent. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he should be allowed to transfer his Post-9/11 GI Bill educational benefits to his son because he was unaware of the requirement to allocate at least 1 month while he was serving in an active status. 2. The evidence of record confirms the applicant served continuously on active duty as a member of the USAR in the rank of LTC from 12 March 2007 until he retired on 31 December 2011 and was transferred to the Retired Reserve on 1 January 2012. This was well over 2 years after the implementation of the program and almost 2 and 1/2 years after the TEB online database was operational. He was eligible to transfer at least 1 month or more of his unused education benefits to any eligible family members enrolled in DEERS; however, he provides evidence that shows he did not allocate any months to either of his sons while he was in an active status. 3. Notwithstanding his sincerity that he was not aware of the requirement to allocate at least 1 month of his education benefits prior to his retirement, 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. While there may have been confusion in the first 90 days of the program, prior to his retirement he had over 1 and 1/2 years after the 21 April 2010 status date of the printout he provides, and should have been aware of the requirement to allocate at least 1 month to an eligible family member while still serving in an active status. 4. The requirement to transfer the benefits while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. As the applicant failed to transfer his education benefits while in an active status, as required by law, he does not meet the criteria to transfer his education benefits to his son. 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) AR20150003113 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003113 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1