IN THE CASE OF:	  

		BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110011547 


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 correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his daughter prior to retirement under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  

2.  He states prior to his retirement from active duty, he submitted an on-line application with the Department of Veterans Affairs (VA) requesting transfer of his Post-9/11GI Bill benefits to his dependents; however, the VA database does not reflect this information. 

3.  He provides:

* a copy of an online application
* a letter from the VA  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that after having 14 years, 2 months, and 
25 days of prior inactive service in the U.S. Army Reserve, he entered active duty on 28 September 1990.  He served as a commissioned officer in military specialty 51Z (Acquisition).

2.  He provided a copy of a VA Form 22-1990 (Application for VA Education Benefits).  This document is an online application which contains confirmation number 1015733 and a submission date of 10 June 2009.  Item 9 (Education Benefit Being Applied For) of this form shows the entry "Chapter 33 – Post-9/11 GI Bill."

3.  A letter from the VA Office in Buffalo, NY, dated 29 October 2009 shows his online application indicating his desire to transfer his Chapter 33 benefits to his dependents was received.

4.  In the same letter, he was instructed to go to the Department of Defense (DOD) Transferability Application Website to determine if his dependents were eligible to receive the transferred benefits.  Once approved, family member(s) could apply to use the transferred benefits by completing a VA Form 22-1990e (Application for Family Member to Use Transferred Benefits).  This form was only be completed and submitted to the VA by the family member after DOD approved the request for TEB.  More information was stated to be available on the www.gibill.va.gov website.  

5.  On 31 May 2010, he retired in the grade of lieutenant colonel/O-5 after completing over 20 years of active federal service.

6.  His record is absent of documentation which shows he completed the TEB application on the DOD Transferability Application Website prior to his retirement date.  

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1 (Personnel).  The opinion stated:

     a.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  

     b.  Based on the following details, their office did not recommend administrative relief for the applicant unless he could 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.

          (1)  A Soldier must be 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 May 2010.  He would have been eligible to transfer the benefit if he had completed the proper application before he left service.

          (2)  A Soldier must have at least six 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 had more than 35 years of service upon his retirement, so he was eligible to transfer to either his spouse or children (if he had completed the request before leaving military service).

            (3)  The TEB online database showed he had two eligible dependents of whom to transfer his benefits; however, 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.

            (4)  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 U.S. Army, DOD, and the 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 May 2010, which was not within 90 days after the program's implementation.

           (5)  A Soldier must initially request to transfer benefits on the DOD’s TEB online database.  The TEB online database was operational 29 June 2009.  Once approved in the TEB online database, the approval information is automatically relayed for VA access.  The respective dependent must then submit a VA-Form 22-1990e, to request to use the benefits.  The applicant claimed he completed this requirement, but the TEB website shows no action was taken by the applicant to transfer any benefits.

8.  On 2 September 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He indicated in his response that he completed an online application (VA Form 22-1990) on 10 June 2009 with the VA and indicated he wanted to transfer his benefits to his daughter.

9.  On 22 June 2009, 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.   

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  He requested correction of his records to show he transferred his Post-9/11 GI Bill benefits to his daughter prior to his retirement.  He contends he completed the necessary application with the VA on 10 June 2009. 

2.  The available evidence shows he completed a VA Form 22-1990 with the VA and requested to transfer his benefits to his daughter on 10 June 2009.  The VA acknowledged receipt of his application and provided him explicit instructions in the letter, dated 29 October 2009.   

3.  The letter instructed him to apply to transfer his benefits on the DOD Transferability Website.  Upon approval, the eligible dependent was required to complete a VA Form 22-1990e in order to receive the available benefits.  

4.  He retired on 31 May 2010; however, there is no evidence to show he completed the TEB application prior to this date.  Accordingly, by law he is no longer eligible to transfer his benefits.  As such, there is no basis for granting the applicant's 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)                                         AR20110011547





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ABCMR Record of Proceedings (cont)                                         AR20110011547



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