IN THE CASE OF:	  

		BOARD DATE:	    14 February 2012

		DOCKET NUMBER:  AR20110014677 


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, correction of his records to show he applied for the Post 9/11 GI Bill Transferability Program before he retired from active duty on 30 September 2009 in order to transfer his education benefits to his eligible dependents.

2.  He states he assumed the Post 9/11 GI Bill would start automatically. 

3.  He provides no additional documentary evidence in support of this application. 
	
CONSIDERATION OF EVIDENCE:

1.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from the Army for length of service on 30 September 2009 in the rank/grade of sergeant first class/pay grade E-7.  He was placed on the retired list on 1 October 2009.

2.  During the processing of this case, on 6 October 2011, an advisory opinion was obtained from the Army, Office of the Deputy Chief of Staff (ODCS), G-1.  The advisory official stated that Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  The law further 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.  The advisory official indicated that based on the details provided below the ODCS,
G-1 recommended administrative relief for the applicant because he left the service during the first 90 days of the implementation of the program.  The official stated that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers that left the service the first 90 days were not fully aware of the requirement to transfer prior to leaving the military service.  The advisory official further stated:

	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 dependents (on or after 1 August 2009).  The applicant's last day of service was 30 September 2009.  He would have been eligible to transfer the benefit to either his spouse or children, if he had transferred it before he left the 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 10 years of eligible service to transfer to eligible children.  The applicant 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 the 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 six eligible dependents enrolled in DEERS.  The applicant 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 agree to serve any prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If the applicant had transferred his benefits prior to leaving military service he would not have incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.

	e.  there was no evidence the applicant had an adverse action in his record and he received the required 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 (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 TEB.  The applicant's last day of service was 30 September 2009.  This was within 90 days after the program's implementation.

	g.  A Soldier must initially request to transfer benefits on the DOD's TEB online database.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective family member must then submit an application for VA education benefits (VA-Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits.  The applicant claimed he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	h.  Changes to the number of months allocated to family members can be made at anytime, to include once the Soldier leaves 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 the service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits. 

	i.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.  No evidence was provided by the applicant that his dependents made a previous claim to VA.  If the applicant is granted relief the beginning date for his dependents to use the transferred benefits will be the date granted relief unless previous specific claims were submitted to VA (verified by VA upon approval).

3.  On 20 July 2011, the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

4.  On 22 June 2009, 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 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.

5.  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.

6.  Section 3319 provides that service members with an approved retirement date after 1 August 2009 and before 1 July 2010 had no additional service requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had more than 20 years of service upon his retirement, had no additional service requirement, no evidence of any adverse action, and would have been eligible to transfer the benefit to either his spouse or children, if he had transferred it before he left the service.

2.  In view of the fact the Post 9/11 GI Bill Transferability Program was a new program, it is not unreasonable to presume there were differing interpretations of the implementing instructions by the education counselors at installation level at the onset of implementation.  The TEB online database shows he did not complete the requirements to apply to transfer educational benefits in the TEB online database.  As such, it is particularly plausible due to his transition from the military in the August-September 2009 timeframe that he was unaware of the requirement to complete an application to transfer his education benefits while he was still on active duty.

3.  Therefore, in the interest of equity and fairness, it would be appropriate to correct his record to reflect he applied to transfer his education benefits under the Post 9/11 GI Bill Transferability Program prior to 30 September 2009.


BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post 9/11 GI Bill benefits to his authorized family members prior to retirement, provided all other program eligibility criteria are met.




      _______ _ 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)                                         AR20110014677



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ABCMR Record of Proceedings (cont)                                         AR20110014677



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