BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110011642 


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, transfer of his educational benefits to his son under the Post 9/11 GI Bill Transferability Program.

2.  The applicant states when he transitioned from active duty the Post 9/11 GI Bill was new to the education specialist and the Department of Veterans Affairs (VA) representative who briefed him about education benefits.  They did not know or did not explain the requirement to make the transfer before separation from active duty.  He tried to do the transfer on the website but it did not process correctly.  He thought he had the benefit and it would transfer to his son when he submitted the request. 
 
3.  The applicant provides:

* VA Form 21-4138 (DVA Statement in Support of Claim)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA documentation
* Correspondence to a Member of Congress
* Letter, dated 13 September 2010, from a Member of Congress 

CONSIDERATION OF EVIDENCE:

1.  After completing almost 29 years of creditable active service, the applicant retired from active duty on 31 March 2010 in the rank/grade of sergeant major.

2.  During the processing of this case, on 28 July 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who states, in summary:

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

	b.  a Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  He would have been eligible to transfer the benefit if he transferred before he left the service.

	c.  a Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse or at least 10 years of eligible service to transfer to eligible children.  He had more than 34 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).

	d.  a Soldier may only transfer to eligible dependents.  He had two eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.

	e.  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 had more than 34 years of service as of 1 August 2009.

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

	g.  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.  His last day in the service was not within the program's implementation.  He describes two people who were not able to answer his questions, but the information he is addressing has been available at http://www.gibill.va.gov since before the implementation of the program.


	h.  a Soldier must initially request to transfer benefits on the Department of Defense's Transfer of Educational Benefits (TEB) online database.  The TEB online 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 to request to use the benefits.  The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken until after he left the service.

	i.  changes to the amount of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 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.            
  
3.  The advisory official does not recommend administrative relief for the applicant unless he can provide evidence showing he attempted to transfer his benefits prior to leaving military service.  

4.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 8 August 2011, he responded.  In summary, he stated:

	a.  in July 2009, he learned about the ability to transfer the benefits to his dependents.  He was told to go to the TEB website and do the transfer which he did.  He thought he successfully transferred the benefits to his son but he did not know until they tried to apply for the GI Bill that the transfer did not go through.

	b.  in January 2010, he and his son went to the VA office and the VA representative told him he was not up to speed on how to transfer the benefit because it was a new program and he was not trained yet.  They completed the request for benefits and the VA representative told him he would submit it to the VA for them.  He actually put the forms in his filing cabinet and took no action.

	c.  in mid August 2010, they went to follow up on the request and the VA representative told him he did not submit the forms.  Then they started over.  They went to the Regional VA Office in Decatur, GA and talked to the education advisor who told them they could not transfer the benefit but he could submit the request and then submit an appeal which probably would not be approved.  He subsequently initiated a congressional inquiry.  He indicates a computer record shows he went to the website and did everything except hit the send button.  He remembers he did hit the send button.  He does not have any hard copy proof that he tried to submit for transfer of his GI Bill benefit to his son.

5.  On 22 June 2009, Department of Defense (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 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.

6.  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 contends he tried to transfer his Post 9/11 GI Bill benefits on the appropriate website but it did not process correctly.  However, the TEB website shows no action was taken by the applicant to transfer any benefits.  

2.  There is no evidence of record and he provided no evidence which shows he transferred his Post 9/11 GI Bill benefits to his son prior to retirement on 
31 March 2010.  Regrettably, there is no basis for granting the requested relief. 

3.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20110011642



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ABCMR Record of Proceedings (cont)                                         AR20110011642



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