IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20110018825 


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

2.  The applicant states, in effect, that he retired on 1 April 2009 after completing more than 25 years of Army service and no one was aware of the new procedures for transferring education benefits to children.  Education system officials were confused about the Post 9/11 GI Bill transfer procedures; therefore, he was unable to transfer his benefits to his son when he retired.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 7 September 1988 and he was honorably retired on 31 March 2009.  He was credited with completing 25 years, 6 months, and 24 days of net active service and he had no lost time.

2.  In an advisory opinion, dated 26 November 2011, the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, recommended no 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 not recommended for the applicant because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.
   
   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/her dependent (on or after 1 August 2009).  The applicant's last day in service was 31 March 2009.  He was not eligible to transfer his Post 9/1/1 GI Bill benefits.
   
   c.  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 25 years of service upon retirement, but he was not eligible to transfer to either his spouse or children because the law required a Soldier to be in the service on or after 1 August 2009.
   
   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.  The TEB online database shows he left service before 1 August 2009; therefore, he was not eligible to participate in the TEB.  
   
   e.  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 would have been in the service on 1 August 2009, he would have incurred no additional service obligation, but he was not eligible because he left the service prior to 1 August 2009.
   
   f.  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.
   
   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.  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 March 2009, which was before 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 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 did not take the required steps to transfer benefits because the program was not yet available.
   
   i.  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.

3.  On 29 November 2011, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  

4.  In his rebuttal, dated 6 December 2011, the applicant stated:

   a.  He was retired from the Army on 1 April 2009 with over a quarter of a century of impeccable military service.  Upon his retirement he went to the Army Career and Alumni Program for assistance in making his transition smoother.  The counselor was unaware and unable to advise him of any action associated with benefits concerning the TEB.  The Education Center was also unaware of the procedures.
   
   b.  He was notified that he did not qualify for the transfer of his Post 9/11 GI Bill benefits to family members.  This information was not available until 
1 August 2009, less than 90 days after his retirement date.  
   
   c.  His son is enrolled in DEERS and he is eligible for DEERS benefits.  He is 19 years of age and a freshman/full time student.  Over the 25 years that he served he never received any adverse action and he was honorably discharged.

5.  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.  




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 March 2009 after completing more than 25 years of service.  In order to transfer his education benefits he was required to have been a member of the service on or after 1 August 2009, which is a requirement established in the law.  As his last date in service was 31 March 2009, he was not eligible to transfer education benefits to either his spouse or his children.  There is no evidence of record and he provided none to show he met one or more of the requirements established by law for transfer of education benefits.

3.  The applicant is commended for completion of over 25 years of dedicated and honorable service; unfortunately, he left the service before 1 August 2009; therefore, this incentive was not available to him at the time of retirement and it is still not available to him unless Congress changes the law.

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)                                         AR20110018825



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ABCMR Record of Proceedings (cont)                                         AR20110018825


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