IN THE CASE OF:	  

		BOARD DATE:	    13 March 2012

		DOCKET NUMBER:  AR20110017776 


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 his educational benefits to eligible dependents under the Transfer of Education Benefits (TEB) provisions of the Post-9/11 GI Bill.

2.  The applicant states, in effect, that at the time he was clearing for retirement, there was a change in the law that would have allowed him to transfer educational benefits to a family member.  He started terminal leave in June with a retirement date of 31 August 2009.  At this time he requested that he be allowed to transfer his educational benefits to his spouse.  However, he has found out that his spouse is not listed on the Defense Manpower Data Center web screen.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 2 April 1987 and he was honorably retired on 31 August 2009.  He was credited with completing 22 years, 4 months, and 29 days of net active service and he had no lost time.

2.  In an advisory opinion, dated 1 November 2011, the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, recommended administrative relief for the applicant.  The G-1 official stated:
   a.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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.  Based on the following details administrative relief was recommended for the applicant because he left the service within 90 days of implementation of the program.  
   
   b.  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 who left service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.
   
   c.  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/her dependent (on or after 1 August 2009).  The applicant's last day in service was 31 August 2009.  He would have been eligible to transfer the benefit if he transferred it before he left the service.
   
   d.  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 retirement, so he was eligible to transfer to either his spouse or children (if he completed the request before leaving military service).
   
   e.  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.  The TEB online database shows the applicant had one eligible dependent enrolled in DEERS.  He was eligible to transfer his spouse.  He did not complete the requirements in the TEB online database because he claims he was not aware of the requirements to transfer prior to leaving the service.
   
   f.  A Solider 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 not have incurred an additional service obligation because he had more than 
20 years of service as of 1 August 2009.
   
   g.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  There is no evidence of an adverse action in the applicant's record.  He received an honorable discharge.
   
   h.  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 (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 education benefits.  The applicant's last day in the service was 31 October 2009, which was within 90 days after the program's implementation.
   
   i.  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 for VA access.  The respective dependent must then submit an application for VA education benefits, the VA Form 22-1990e, 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.  The TEB website shows no action was taken by the applicant to transfer any benefits.
   
   j.  Changes to the number of months allocated to dependents can be made at anytime, to include once they leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  The TEB website shows no action was taken by the applicant to transfer any benefits.

	k.  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 shows his dependents made a previous claim to the VA.  If he is granted relief, the beginning date for his dependents to use the transfer of benefits will be the date granted unless previous specific claims were submitted to the VA (verified by the VA upon approval).

3.  On 2 November 2011, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  He did not respond.

4.  On 22 June 2009, the Department of Defense 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 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; or

	c.  is or becomes retirement eligible during the period from 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 service 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.  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.  The applicant contends his records should be corrected to allow him, as an exception to policy, to transfer his educational benefits to eligible dependents under the TEB provision of the Post-9/11 GI Bill.

2.  The evidence of record shows he was honorably retired on 31 August 2009 after completing more than 22 years of service.  The Office of the Deputy Chief of Staff, G-1 opined that although significant measures were taken to disseminate the transferability of unused Post 9/11/ GI Bill benefits many Soldier who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.  
3.  The applicant's last day in the service was 31 August 2009 which was within 90 days of implementation of the program.  The applicant contends he was not aware of the requirement to transfer his educational benefits prior to retirement; therefore, none of the required steps to transfer his benefits were taken.  Based on the foregoing and as a matter of equity, he is eligible to transfer his benefits to either his spouse or children under the TEB provisions of the Post-9/11 GI Bill.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that 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 dependents 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)                                         AR20110017776



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ABCMR Record of Proceedings (cont)                                         AR20110017776



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