ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  8 February 2019

	DOCKET NUMBER:  AR20160015121


APPLICANT REQUESTS: 

* amendment of his military service record to enable the Transfer of Education Benefits (TEB) under his Post 9/11 GI Bill to his dependent child.
* he also requests a personal hearing before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty),                         dated 22 November 2007
* Memorandum, Subject: Notice of Voluntary Retirement,                                           dated 29 September 2013
* Manpower Data Center letter, dated 19 March 2014
* Orders Number 114-004, dated 24 April 2014
* Meritorious Service Medal Certificate, dated 30 June 2014
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Memorandum, Subject: Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years), dated 1 July 2014
* Department of Veterans Affairs (VA) letter, dated 15 July 2016
* Department of the Army (DA) Pre-Retirement Briefing PowerPoint

FACTS:

1.  The applicant states in effect:

* the injustice occurred, on 30 June 2014, when he retired from the Massachusetts Army National Guard (MAARNG) and was transferred to the Retired Reserves
* his retirement was 3 months and 11 days short of fulfilling the obligation required after transfer of his unused Post 9/11 GI Bill benefits to his son
* his son is enrolling in his freshman year in college on 23 August 2016, and in advance of that he applied for benefits with the VA, on 20 June 2016, and on or about 15 July 2016, he received notification his claim had been denied
* the denial has stripped his family of $63,052.00 in tuition and educational benefits he earned over the course of 20 years of service
* he downloaded the Army Pre-Retirement briefing in effect at the time and it makes no mention of the Soldier having to check the Soldiers Post 9/11 GI Bill transfer obligation date
* when he completed his pre-retirement briefing, he was told his Post 9/11 GI Bill transfer was in order as long as the transfer had been made prior to his retirement date

2.  A review of the applicant’s service record shows the following on:

* 2 November 1997 – appointed as a reserve commissioned officer in the MAARNG and executed an oath of office
* he served in various stateside and overseas assignments to include a deployment to the Balkans in support of Operation Enduring Freedom

3.  On 30 June 2014, he was honorably released from the MAARNG and transferred to the Retired Reserve.  NGB Form 22 shows he completed 15 years, 8 months, and 17 days for this period of service with 4 years, 3 months, and 14 days of prior Reserve component service.

4.  The applicant provides:

* DD Form 214, showing he deployed in support of Operation Enduring Freedom from 22 May 2007 to 30 October 2007
* Memorandum, Subject: Notice of Intent for Voluntary Retirement, wherein he requested release from active Reserve duty on 30 June 2014 and placement on the retired list on 1 July 2014
* TEB approval letter, showing his transfer request date was on 11 October 2010 and he had a an obligation date of 11 October 2014
* Orders Number 114-004, showing he was honorably released from the ARNG and transferred to the Retired Reserve
* Meritorious Service Medal Certificate presented to him for meritorious service in the MAARNG
* Memorandum, Subject: Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years), showing he had completed 20 years of service and would be eligible for retired pay
* TEB disapproval, showing his son’s application for benefits was disapproved because he [applicant] had not been approved by the Department of Defense to transfer entitlement
* DA Pre-Retirement Briefing providing a description of retirement programs, benefits and entitlements

5.  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 Soldier must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on or after 1 August 2009.  

6.  Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

BOARD DISCUSSION:

1.  The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance.  The applicant provided a TEB approval letter, showing his transfer request date was on                                     11 October 2010 and he had an obligation date of 11 October 2014.  He also provides a Memorandum, Subject: Notice of Intent for Voluntary Retirement, wherein he requested release from active Reserve duty on 30 June 2014 and placement on the retired list on 1 July 2014, a little more than three months prior to his obligation date to be able to transfer Post 9/11 GI Bill benefits to his son.  

2.  The Board recognizes the financial hardship incurred by not having the Post 9-11              GI Bill transferred to his son.  The applicant states he was erroneously advised on the transfer of his educational benefits; on the other hand, the applicant had an obligation date listed on his TEB approval letter.  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 Soldier must also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on or after 1 August 2009.    
    
3.  The Board further considered the request for a personal appearance before the Board and found the evidence of record and the independent evidence provided by the applicant to be sufficient to render a fair and equitable decision at this time.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned and for a personal appearance before the Board.  

	 					___________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.

ADMINISTRATIVE NOTE(S):  Not Applicable



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 also agree to serve the prescribed additional service obligation based on the time in service the Soldier had on 1 August 2009.  

	c.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  

	d.  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.  

	e.  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.  

2.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and on or after 1 August 2009, is eligible for the Post-9/11 GI Bill and, in pertinent part, 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.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

ABCMR Record of Proceedings (cont)	 AR20160015121
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