IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110007920 


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 under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his family member (daughter).

2.  The applicant states he has documentation from the Department of Veterans Affairs (VA Form 22-1990E (Application for Family Member to Use Transferred Benefits)) indicating that at one point and time his daughter was in the system/database.  On or about 17 November 2010, he spoke with an education representative and she explained to him that there was a glitch in the system and asked him to fax her a copy of the VA Form 22-1990 in order to correct the problem.  On 11 March 2011, he called to ensure the updates have taken place but, to his surprise, they have not.

3.  The applicant provides:

* VA Form 22-1990, dated 17 November 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2010
* Orders 020-0157 (retirement), dated 20 January 2009

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Army Reserve (USAR) from 5 August 1976 through 16 April 1989, the applicant enlisted in the Regular Army on 17 April 1989 and held military occupational specialty 98G (Voice Interceptor). 
2.  He served through multiple reenlistments and he was honorably discharged on 1 May 1998.  Prior to his discharge, he again enlisted in the USAR on 2 March 1998.  He then served though multiple reenlistments and attained the rank/grade of master sergeant (MSG)/E-8.  

3.  On 8 September 2004, he received his Notification of Eligibility for Retired pay at Age 60 (20-year letter).  Additionally, he entered active duty on 4 October 2004 and served with the Defense Intelligence Agency and with the U.S. Army Garrison, Fort Myer, VA.  He was honorably released from active duty on 31 August 2007.

4.  He again entered active duty on 1 January 2008 to obtain 20 year of active Federal service under the extended active duty sanctuary program.  He was assigned to Fort Hood, TX.

5.  His record shows, in anticipation of his upcoming retirement, he underwent a pre-separation briefing on 31 August 2009 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).  Items checked "Yes" are mandatory for service members to receive further information or counseling, or attend additional workshops, briefings, classes, etc.

6.  He was honorably retired on 31 January 2010 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 February 2010.  He was credited with over 20 years of creditable active service.

7.  There is no indication he applied for a transfer educational benefits under the TEB provision of the Post-9/11 GI Bill to his family members while on active duty.

8.  On 17 November 2010, he submitted a VA Form 22-1990E wherein he requested a transfer of his educational benefits to his daughter. 

9.  An advisory opinion was obtained on 22 July 2011 from the Office of the Deputy Chief of Staff, G-1, in the processing of this case.  The advisory official recommended disapproval of the applicant's request.  He stated 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.  Based on the details below, we do not recommend administrative relief for the applicant, unless he can provide evidence showing he attempted to transfer prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits.
	a.  A Soldier must be currently on active duty or a member of the Selected Reserves at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day in service was 31 January 2010.  He would have been eligible to transfer the benefit if he transferred before he left service.

	b.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least ten years of eligible service to transfer to eligible children.  The applicant in this case had more than 20 years of service upon his retirement, so he was eligible to transfer to either his spouse or children (if he completed the request before leaving military service).

	c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21, or at marriage.  Eligible dependent 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 benefit.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The Transfer of Education (TEB) online database shows the applicant had two eligible dependents enrolled in DEERS.  He was eligible to transfer to the following dependents: Lxxa M. (spouse), and Nxxxy (child).  He did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer prior to leaving service.

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If the applicant transferred his benefits prior to leaving military service he would have not incurred an additional service obligation because he was in the Sanctuary Program and had a mandatory retirement date (MRD) of 1 February 2010.   

	e.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  There is no evidence of an adverse action in the applicant's record.  He received an honorable discharge. 

	f.  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, and Department of Veterans Affairs (VA) initiated a massive 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.  The applicant's last day in the service was 31 January 2010, which was not within 90 days after the program’s implementation.  

	g.  A Soldier must initially request to transfer benefits on the Department of Defense’s 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 for VA access.  The respective dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to request to use the benefits.  The applicant submitted a VA Form 22-1990E in November 2010, which allows him to use the benefits for himself, but does not grant his dependents use of the benefits.  At this time he was already out of the service.  Our system shows that he did not attempt to transfer his benefits using the TEB online before leaving military service.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least one month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

10.  On 3 August 2011, the applicant responded with a rebuttal, wherein he stated that he reviewed the advisory opinion and based on his findings, his daughter qualified for this entitlement.  He had signed her up for this program while he was on active duty.  However, it is possible that a glitch in the system failed to recognize his intentions to transfer these benefits.  With his request, he submitted:

* An article regarding the GI Bill Transferability
* Printouts of VA application for Post 9/11 GI Bill benefits for himself and verification of VA receipt and acceptance
* An undated VA Certificate of eligibility/entitlement to benefits for an approved program of education training under the Post 9/11 GI Bill, for himself

11.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states 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; 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.

12.  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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

13.  On 10 July 2009, the Army released the Post 9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post 9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to allow him an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family member.

2.  The evidence of record shows the applicant was fully eligible to apply for the Post 9/11 GI Bill benefits for himself and he did so and received confirmation from the VA.  He was also eligible to transfer his education benefits to his dependent(s) under the TEB prior to his retirement but there is no evidence to show he did so.  He contends there was a glitch in the VA system; however, he did not provide any evidence to support this contention.

3.  The DOD, VA, and the Army conducted a massive public campaign plan that generated major 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 nearly a year after the program was implemented.

4.  The applicant's service and his sincerity are not in question.  However, since the applicant retired on 31 January 2010, nearly a year after the program was implemented, he had plenty of 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.  Therefore, he is ineligible to transfer benefits. 

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)                                         AR20110007920





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ABCMR Record of Proceedings (cont)                                         AR20110007920



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