IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110016518 


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 the Army Education Incentives Branch denied his request to transfer his Post 9/11 GI Bill education benefits to his daughter on      4 August 2011 because Department of Defense and Army policies require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits.  He further states he was discharged from active duty on 
14 September 2009 and subsequently retired from the U.S. Army Reserve due to reaching mandatory retirement on 12 July 2011.  Prior to transfer to the "Individual Retired Reserve," he was not made aware that his option to transfer benefits would expire after retirement.  Further, his daughter is scheduled to attend college in autumn of 2012 and therefore he had no need to read, review or analyze his Post 9/11 GI benefits until now.  He states he is currently an unemployed veteran and the transfer of benefits would greatly help his daughter.  Additionally, the current Army policy grants no grace period for transitioning veterans or mandates out processing benefits briefings for Reserve Soldiers as afforded to active duty Soldiers.  He respectfully requests redress and a reversal of the current decision.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 11-193-00006
* Email from the Army Education Incentives Branch

CONSIDERATION OF EVIDENCE:

1.  After completing the maximum authorized years of service for retirement, the applicant was transferred to the Retired Reserve, on 12 July 2011, in the rank/grade of colonel/O-6.

2.  There is no indication he applied to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his family members while on active duty or as a member of the Selected Reserve on or after 1 August 2009. 

3.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, dated 20 October 2011, who states:

	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 on or after 1 August 2009.  Based on the details below, we do not recommend administrative relief for the applicant unless he can provide evidence showing he attempted to transfer benefits prior to leaving military service and/or was given false information by a reliable source about the rules of transferring education benefits.

	b.  A Soldier must be currently on Active Duty or a member of the Selected Reserve at the time of transferring education benefits to his or her dependent (on or after 1 August 2009).  The applicant’s last day of service was 12 July 2011.  He would have been eligible to transfer the benefit if he had transferred it before he left service.

   c.  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 had more than 28 years of service upon his retirement, so he was eligible to transfer to either his spouse or his children (if he completed the request before leaving military service).

   d.  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 TEB online database shows the applicant had two 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.

   e.  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 (DVA) 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 12 July 2011, which was not within 90 days after the program’s implementation.

   f.  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 to DVA access.  The respective dependent must then submit an application for Veterans Administration education benefits, VA-Form 22-1990e, to request to use the benefits.  The TEB website shows the applicant requested transfer of his benefits on 3 August 2011, but he was no longer serving on active duty or Selected Reserve service on that date.

   g.  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 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 DVA (verified by DVA upon approval). 

4.  On 21 October 2011, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 20 November 2011, the applicant responded with a rebuttal, wherein he stated the advisory opinion failed to address why he, or any reserve officer, was not provided the same pre-retirement exit interview and transition assistance as provided to active duty Soldiers and the absence of such an exit interview and transition assistance constitutes a denial of due process, and further violates the equal protection laws of our U.S. Constitution.  He further stated, in effect, since his daughter was not due to commence her college education until autumn 2012, there would be no reasonable way he would have known to seek transfer of the benefits to her several years before she would be entering college.  Had he been provided the proper assistance prior to his retirement, he would have been made aware of the necessity to seek transfer of the benefits prior to his retirement date, and would have done so immediately.  Instead, the advisory opinion referred to a “massive public campaign” without providing any specifics as to how or when the information was disseminated and directly reached him.  In addition, he further stated he has served his country faithfully, and with honor for 30 years, to include deployments to Southwest Asia and to deny this benefit would be a violation of the ultimate law of the land, the U.S. Constitution, and a miscarriage of justice.

5.  On 22 June 2009, Department of Defense guidance 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, provided he or she:

	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;

	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 Department of Defense) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute;

	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; and

	d.  for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required.

6.  The policy further states the Secretaries of the Military Departments will:

	a.  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

	b.  maintain records for individuals who receive supplemental educational assistance under section 3316 of reference (a) and provide those records to the Defense Manpower Data Center and the DVA.

7.  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.

8.  Army Retirement Services, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army’s mission is to provide information on benefits and entitlements to active duty Soldiers and families preparing for retirement and to Retired Soldiers and families through Army Installation Retirement Services Officers (RSO), the pilot Army Reserve RSO at Fort Snelling, MN, and Army National Guard State RSOs.  In accordance with Army Regulation 600-8-7 (Retirement Services Program), Army Retirement Services develops Army policy and procedures for the Survivor Benefits Plan Program; publishes the Headquarters, Department of the Army bulletin for the retired Soldier; develops policy for the operation of the Army Retirement Services Program; and administers the Army Chief of Staff’s Retiree Council.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows the applicant was eligible to transfer his educational benefits to his daughter under the TEB prior to retirement, but there is no evidence to show he did so.  He contends he was not provided the same preretirement exit interview and transition assistance provided to active duty Solders thereby rendering him unaware of the necessity of transferring his benefits prior to his retirement date.   

3.  Notwithstanding the applicant’s contention that he was not provided the same preretirement exit interview and transition assistance as provided to active duty Soldiers, RSOs were and are in place to assist all Soldiers throughout their transition.  The applicant is ultimately responsible to take advantage of all of the resources which are available to him and to stay current on all entitlements in order to ensure a smooth transition into retirement for himself and his family.  

4.  The law requires a member to be in an active status at the time the individual requests the transfer.  The applicant is not in an active status.  Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his daughter.

5.  The Department of Defense, DVA, 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 two years after the program was implemented.

6.  The applicant's service and his sincerity are not in question.  However, since the applicant was transferred to the Retired Reserve on 12 July 2011, nearly        2 years 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.  The applicant readily admits he had no need to read, review or analyze his benefits until now.  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)                                         AR20110016518



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ABCMR Record of Proceedings (cont)                                         AR20110016518



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