IN THE CASE OF:	  

		BOARD DATE:	    3 April 2012

		DOCKET NUMBER:  AR20110017538 


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 to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he served 29 years in the U.S. Army Reserve (USAR).  He deployed to Kosovo and to Iraq.  He states he did not use any of his educational benefits during his period of service.  He states Directive-Type Memorandum (DTM) 09-003, subject:  Post-9/11 GI Bill, refers to 15 years to use benefits and then refers to a requirement to be on active duty to transfer benefits.

3.  The applicant provides his orders for transfer to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He was commissioned as a second lieutenant in the USAR on 15 August 1982.  On 1 October 2010, he was transferred to the Retired Reserve.  He had 25 years, 8 months, and 9 days of qualifying service for non-Regular service retired pay.

3.  On 2 November 2011, an advisory opinion was obtained in the processing of this case.  An official in the Office of the Deputy Chief of Staff, G-1, recommends disapproval of the applicant's request.  There is no evidence he attempted to transfer his benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring educational benefits.  This official also stated:

	a.  The individual must have been in an active duty status or in the Selected Reserve on or after 1 September 2009.  The applicant retired on 1 October 2010. 
He would have been eligible to transfer the benefits if he transferred them before he left military service.

	b.  The individual must have 6 years of eligible service to transfer the benefits to a spouse and 10 years to transfer the benefits to children.  He had more than 25 years of qualified service upon his retirement, so he was eligible to transfer his benefits to either his spouse or children (if he completed the request before leaving military service).

	c.  The individual must have eligible dependents enrolled in Defense Eligibility Enrollment Reporting System (DEERS).  The TEB online database shows he had two eligible dependents enrolled in DEERS.  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 military service.

	d.  The individual must agree to complete any additional service obligation, have no adverse action, and have an honorable discharge.  If he 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.  He had no adverse action and he was honorably retired.

	e.  He should not be granted relief based on unawareness of the law, program, rules, or procedures, unless he left the service during the implementation phase (first 90 days of the program).  The Army, Department of Defense (DOD), and Department of Veterans Affairs (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 educational benefits.  His last day of military service was 30 September 2010, which was not within 90 days after the program's implementation.

	f.  A Soldier must initially request the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  The respective dependent must then submit an application for VA benefits.  He claims he was not aware of the requirement; none of the required steps to transfer benefits were taken.

	g.  Changes to the amount of months allocated to dependents can be made at any time, to include once a member 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 military service, he or she is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

4.  He referred to Department of Defense DTM 09-003, dated 22 June 2009, subject:  Post-9/11 GI Bill, in his application.  According to the DTM, a veteran has 15 years to use his or her educational benefits from the date of his or her discharge.  This 15 years refers only to the veteran using the benefit.  Paragraph 3d of the DTM specifically addresses how long dependents have to use the benefits, once transferred.  Spouses have 15 years after the Soldier leaves military service to use the benefits and children have up to age 26 to use the benefits.

5.  He was provided a copy of the advisory opinion; however, he did not submit any rebuttal to the opinion.

6.  Public Law 110-252, dated 30 June 2008, authorized the Post-9/11 GI Bill which became effective 1 August 2009.  Section 3319 of this law states that an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.

7.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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 Component service.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  He was fully eligible to transfer his educational benefits under the TEB prior to his retirement but did not do so.

2.  DOD, VA, 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.  A Soldier must be on active duty or a member of the Selected Reserve at the time of the transfer of the benefits.

3.  DTM 09-003 states veterans have 15 years to use their educational benefits after discharge.  The 15 years referred to has nothing to do with the requirement to transfer benefits while still in an active status (prior to discharge or retirement). 
The DTM also provides the period dependents have to use the benefits once transferred.

4.  The law requires a member to be in an active status at the time he/she requests the transfer.  The applicant is not in an active status and he did not leave military service during the implementation phase of the program.  Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his family members.

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 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)                                         AR20110017538



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ABCMR Record of Proceedings (cont)                                         AR20110017538



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