IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011365 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011365 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011365 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 it was not clear to him that his Post 9/11 GI Bill Benefits needed to be transferred to his dependents prior to retirement. In fact, it was not clear to him whether he was qualified for Montgomery GI Bill Benefits or Post 9/11 GI Bill Benefits. One contributing factor is that he did not think he would be forced to take a mandatory retirement as early as he had to take it; therefore, he was not prepared for his retirement as he would have been if had been allowed to serve until he was ready to retire. He had nothing but exemplary service for 20+ years of military service and his branch (Civil Affairs) was critically short on O-3 and O-4 grades; so, he thought he would be able to continue to serve as an O-4 even though he was not selected for promotion to lieutenant colonel (LTC)/O-5. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Mandatory Retirement Date (MRD) memorandum due to non-selection for promotion * Retirement orders CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 22 September 1995. He entered active duty on that date. 2. He served on active duty as a Regular Army officer in a variety of stateside or overseas assignments, including Iraq, Afghanistan, Kosovo, and Djibouti, and he attained the rank of major (MAJ). 3. On 26 July 2012, he was notified that he was considered for promotion to LTC/O-5, but he was not selected. He was also advised that he must be retired from the Army no later than the 7th month from the approval date of this board. His mandatory removal date was established as 31 January 2013. 4. He retired on 31 January 2013 and he was placed on the Retired List in his retired grade of O-4 on 1 February 2013. He was credited with completing more than 20 years and 6 months of active service. 5. The Board requested and the Chief, Office of Incentives and Finance Team, U.S. Army Human Resources Command (HRC), provided an advisory opinion on 1 March 2016 in the processing of this case. The HRC official recommend disapproval of the applicant’s request to transfer Post 9/11 GI Bill education benefits. The official stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, § 3020 Public Law 110-252 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, have at least 6 years in Active Duty or Selected Reserve status, and commit to the required service obligation. The U.S. Army Post 9/11 GI Bill Policy Memorandum, dated 10 July 2009, requires no current negative action flag (includes adverse action flag) and transfer benefits to the dependents through the TEB website, milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. Based on the details below, HRC does not recommend administrative relief because the applicant did not submit a Post 9/11 GI Bill TEB request while on active duty. This office sympathizes with the applicant but must follow law and policy which require a Soldier submit a TEB request while still on active duty or in the Selected Reserve. b. Regarding his statements about the TEB, the following information is provided: (1) He stated he did not submit a TEB request while still on active duty. The TEB website confirms he did not submit a TEB request while on active duty. (2) He was eligible to submit a TEB request from 1 August 2009 until his last day on active duty, 31 January 2013. Because he was two-time non-select for promotion his TEB Obligation End Date would have been his last day on active duty. However, he did not request a TEB as required. (3) The Department of the Army Post 9/11 GI Bill Policy Memorandum was available to him for 3 years before his retirement date of 31 January 2013. He could have requested the TEB during that timeframe also. c. 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 Department of Veterans Affairs (VA) initiated a comprehensive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits. He retired on 31 January 2013, which was not within the 90-day implementation phase. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit remarks and/or a rebuttal; however, he did not respond. REFERENCES: 1. 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 a member of the Selected Reserve. a. A Soldier must be 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). 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 in service the Soldier had 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 which is the first 90 days of the program. The Army, DOD, and the VA initiated a public campaign plans that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits. g. A Soldier must have initially requested 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 electronically to the VA for their 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 any time, to include once a Soldier leaves military service, provided the Soldier allocates at least 1 month of benefits prior to his or her separation. If the Soldier allocates 0 months and subsequently leaves military service, he/she is not authorized to transfer unused benefits post service. 2. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. An eligible individual 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 service or 20 qualifying years of Reserve service. 3. There is a provision on the milConnect DOD TEB Web application that shows once a transfer request is submitted it continuously shows the status "Submitted" until the transfer is approved or rejected. Once a request is approved, the status will be updated to "Request Approved" and the status date will be set to the date the Service Representative approved the request. An approval form also become available once a TEB request is approved. There is an option to print the approval form so a Soldier can maintain a copy of the approval for his or her personal records. DISCUSSION AND CONCLUSIONS: 1. The applicant was eligible to transfer his education benefits under the TEB prior to retirement, but there is no documentary evidence he did so. The program was implemented in July 2009, with an effective date of 1 August 2009, and he retired on 31 January 2013. 2. The Army, DOD, and VA conducted public campaigns 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 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 January 2013. His service is not in question; however, since the applicant had been on active duty since the program was implemented in August 2009 and then for over 3 years 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 for this program are embedded in the law and a change to the law is not within the purview of this Board. There is neither evidence of an error nor an injustice in the applicant's case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011365 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011365 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2