IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015367 


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 daughter under the Post 9/11 GI Bill Transferability Program.
 
2.  The applicant states:

	a.  he is a retired Soldier who wants to transfer his GI Bill benefits to his daughter for her college education.  He was told he was required to initiate the transfer while he was still on active duty.  He is requesting an exception to policy so he can transfer his benefits at this time.

	b.  the transfer was not made while he was on active duty because during the time of his retirement out-processing there wasn’t much good information out about the Post 9/11 GI Bill or the process for transferring it to a dependent.  The information he received was to wait until his daughter had a school date and then he should request a transfer through the Department of Veterans Affairs (DVA).  Upon speaking to the VA he learned that he must be on active duty to transfer benefits.  He was given incorrect information.    

3.  The applicant provides no documentary evidence. 

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years and 17 days of creditable active service, the applicant retired from the Regular Army on 30 November 2009 in the rank/grade of staff sergeant.
2.  During the processing of this case, on 17 October 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).  His last day in service was 30 November 2009.  He would have been eligible to transfer the benefit if he transferred before he left service and agreed to the additional service obligation.

	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 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 and agreed to the additional service obligation).

	d.  a Soldier may only transfer to eligible dependents.  He had two eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.  He did not complete the requirements in the Transfer of Education Benefits (TEB) online database because he claims he was not aware of the requirement to transfer prior to leaving service.

	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 he transferred his benefits prior to leaving military service he would have incurred a one-year additional service obligation because he had between 19 and 20 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 30 November 2009, which was not within 90 days after the program’s implementation.
	h.  a Soldier must initially request to transfer benefits on the Department of Defense's 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.  He claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	i.  changes to the amount of months allocated to dependents can be made at anytime, to include once they leave 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. 

	j.  the DVA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the DVA.  No evidence was provided by the applicant that his dependents made a previous claim to the DVA.  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 the DVA (verified by DVA upon approval).   

3.  The advisory official does not recommend administrative relief for the applicant unless he can provide evidence showing he started terminal leave within the first 90 days of the implementation of the program and he was given false information by a reliable source about the rules of transferring education benefits (specifically the additional service obligation he would have incurred).

4.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond within the given time frame.

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.  The applicant’s contentions were carefully considered.  However, there is no evidence of record and he provided no evidence which shows he transferred his Post 9/11 GI Bill benefits to his daughter prior to retirement on 30 November 2009.  Regrettably, there is no basis for granting the requested relief. 

2.  In addition, had the applicant transferred his benefits prior to his 30 November 2009 retirement, he would have incurred an additional active duty service obligation. 

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)                                         AR20110015367





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ABCMR Record of Proceedings (cont)                                         AR20110015367



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