IN THE CASE OF:	  

		BOARD DATE:  26 January 2012

		DOCKET NUMBER:  AR20110018149 


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 an exception to policy to back-date the date he transferred his education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependent from 24 November 2010 to 7 April 2010.   

2.  The applicant states he transferred his benefits to his daughter who started school on 7 April 2010.  The college sent him several forms and he was ultimately told of the website to transfer the benefits.  However, the website would not allow him to back-date the transfer date to the date his daughter started college on 7 April 2010. 

3.  The applicant provides:

* Correspondence from his daughter's college
* Application for Family Member to Use Transferred benefits
* Various DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Statement in support of a claim
* Employment verification memorandum
* Enrollment certification
* Healthcare Reimbursement printouts




CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army (November 1981 to November 1993) and the Army National Guard (ARNG) (October 1993 to March 1996), the applicant enlisted in the ARNG on 31 October 2000.  He performed various periods of active duty and he was discharged on 8 May 2006.

2.  He entered active duty from the U.S. Army Reserve on 15 December 2006 and he was honorably released from active duty on 13 December 2010.  He again entered active duty on 14 December 2010 and he was retired on 31 March 2011 and placed on the retired list on 1 April 2011 in his retired rank/grade of sergeant first class/E-7.

3.  On 27 October 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 because there is no evidence he attempted to transfer his benefits using the TEB webpage on or before 27 April 2010 (the term start date of his daughter).  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 September 2009.  The applicant retired on 30 March 2011.  He transferred his GI Bill benefits on 24 November 2010 (before he left the military).

	b.  Have 6 years of eligible service to transfer the benefit to a spouse and 
10 years to transfer the benefit to children.  The applicant had over 20 years of service.

	c.  Have eligible dependents enrolled in DEERS (Defense Eligibility Enrollment Reporting System).  The applicant had six eligible dependents (spouse and five children) enrolled in DEERS.  He opted to transfer the benefits to his daughter Jaxxxxx.  He completed the requirements on 24 November 2010 and he requested a start date of 24 November 2010.  Dependents are only authorized to use the transferred benefits no earlier than the TEB request date or the date entered by the Soldier on the TEB webpage, whichever is earlier. 

	d.  Agree to complete any additional service obligation, have no adverse action, and an honorable discharge.  The applicant in this case did not incur any additional service obligation.  He had no adverse action and he was honorably retired.  

	e.  An individual 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 applicant's last active duty date was 1 March 2011.  He did not leave service during the implementation phase of this program.

	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 Department of Veterans Administration (VA).  The respective dependent must then submit an application for VA benefits.  Since the applicant states he was unaware of the program process, the step to transfer benefits using the TEB webpage was not done until 24 November 2010. 

4.  The applicant was provided a copy of this advisory opinion and he responded with two documents:

	a.  A statement, dated 2 December 2011, from the college certifying official who states the applicant's daughter sent the enrollment certification to the Department of Veterans Affairs (VA) and she received email confirmation.  Her enrollment was certified for the semesters beginning on 29 June 2010 and 4 October 2010 but no payments were received from the VA.   After much research, the applicant was directed to submit a request to transfer the benefits which he did on 24 November 2011. The student now owes $11,000.00 of unpaid tuition. 

	b.  A statement, dated 1 December 2011, from the applicant's daughter restating the same contention stated above. 

5.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member 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 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement and he did so on 24 November 2010.  He retired on 30 March 2011.  His dependent began her education on 7 April 2010.  It is unclear why the applicant did not apply for the transfer of benefits prior to the beginning of his dependent's education.  

2.  The DOD, the 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 meet two criteria to qualify to transfer benefits to an eligible dependent:  

* be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action)
* have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of the request, unless retirement eligible

3.  The DOD website used to transfer benefits does not allow Soldiers to enter a retroactive date, which is consistent with the intent of the law.  In the absence of evidence that shows he attempted to transfer his benefits using the TEB website after implementation of the program but prior to 7 April 2010, there is insufficient evidence to grant him relief in this case.

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)                                         AR20110018149



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ABCMR Record of Proceedings (cont)                                         AR20110018149



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