IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110018850 


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, transfer of his educational benefits to his daughter under the Post 9/11 GI Bill Transferability Program.

2.  The applicant states:

	a.  he was not adequately informed of regulations requiring an additional 
2-year active duty service commitment in order to transfer his 9/11 Montgomery GI Bill benefits to his daughter.

	b.  he received orders to retire in March 2011.  He was later informed during his out-processing on 25 July 2011 that a 2009 regulation required a 2-year active duty commitment in order to transfer the 9/11 GI Bill benefits to his dependent.   

	c.  The Education Incentives Branch at Fort Knox advised him he should have made the request in February 2010 in order to fulfill the regulation requirement and retire in February 2012.  He has been assigned to U.S. Central Command since June 2008 and has made 5 deployments to the Arabian Peninsula supporting Operations Enduring Freedom and Iraqi Freedom.  High operating/operations tempo and being assigned to a Joint Command have denied him ready access to Army education counselors.

	d.  he was never publicly informed of the 2009 regulation requiring an additional service commitment to transfer the benefit to a dependent.  With seven 


daughters to support he had budgeted and planned to transfer the benefits to his daughter to help cover the cost of education for all his girls.  His denial will severely impact his ability to pay for their education.  

   e.  Since rescinding the retirement order is not a viable option for him and he was never informed of the 2009 regulation, he would like to request the transfer of his Montgomery GI Bill educational benefits to his daughter.  

3.  The applicant provides an email from the Education Incentives Branch.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a lieutenant colonel with a basic active service date of 
20 November 1990, has an approved retirement date of 29 February 2012.   

2.  He provides an email, dated 25 July 2011, from the Education Incentives Branch which states his request to transfer benefits cannot be approved due to his approved retirement date of 29 February 2012.
	
3.  During the processing of this case, on 8 November 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who states, in summary:

	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.   

	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 or her dependent (on or after 1 August 2009).  He is currently serving and has a projected retirement date of 29 February 2012.  He attempted to transfer education benefits on 2 July 2011, but was denied because he did not have the required additional service time.

	c.  a Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse or at least 10 years of eligible service to transfer to eligible children.  He has more than 20 years of service, so he was eligible to transfer to either his spouse or children.

	d.  a Soldier may only transfer to eligible dependents.  He had eight eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.  He 


completed the requirements in the TEB online database on 2 July 2011 with a requested start of 3 October 2011.  The TEB webpage does not allow Soldiers to enter a retroactive date, which is consistent with the law's intent.  Dependents are only authorized to use the transferred benefits starting on the date entered by the Soldier on the TEB webpage. 

	e.  a Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  He would have incurred an additional service obligation because he only had 18 years of service as of 1 August 2009.

	f.  a Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant's record.  He is still in the service.

	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.  He is still in the service.

	h.  a Soldier must initially request to transfer benefits on the Department of Defense's TEB online database.  The TEB online 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 to request to use the benefits.  He does not have an approved TEB request; therefore, his dependents cannot receive VA benefits.
 
4.  The advisory official does not recommend administrative relief for the applicant unless he can provide evidence showing he attempted to transfer his benefits using the TEB webpage on or before February 2010 which would have ensured he fulfilled the 2-year service remaining requirement by his projected retirement date of 29 February 2012.

5.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 13 November 2011, he responded.  In summary, he stated:

	a.  he signed up for the Montgomery GI Bill as an E-5 just beginning Officer Candidate School at Fort Benning, GA.  He completed the 12-month investment and due to military duties and a growing family he never had the opportunity to use the GI Bill.  For over 20 years he has faithfully served in the Army, frequently uprooting his family from homes they knew and moving them into new environments.  He has deployed several times on unaccompanied tours and in combat zones to fight our nation's wars.

	b.  in July 2008 he was assigned to U.S. Central Command and sometime in 2009, he remembers hearing that the GI Bill could be transferred to family dependents.  He was excited since he would be able to pay for one of his daughter's education.  He was never told or advised that Public Law required him to serve additional time if he transferred his benefit.  Frankly, OPTEMPO and mission focus prevented him from thinking about education benefits.  Had he known of the requirement he would have gone to the website and completed the transfer back in February 2010.  He first learned of the requirement when he attempted to transfer the benefit to his daughter during his retirement briefings.

	c.  the advisory opinion cites Public Law 110-252, requiring the service member to serve additional time on active duty if he/she desires to transfer GI Bill benefits to his children.  He is retiring with 21 years of service on 29 February 2012 and has no intention of postponing the retirement.  The Army did a superb job explaining the great benefits of investing in the Montgomery GI Bill back in 1990.  He cannot say the military adequately advised him of the requirements of transferring the benefits to his daughter.  He has no intention of violating Public Law as the advisory opinion opined.  It doesn't mean that the assessment is fair and just.

6.  On 22 June 2009, Department of Defense (DOD) 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 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 service.  
* For those individuals eligible for retirement on or after 1 August 2010 and before 1 August 2011, 2 years of additional service is required

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not adequately informed of the regulation requiring an additional 2-year active duty service commitment in order to transfer his Post 9/11 benefits to his daughter.  

2.  His BASD is 20 November 1990.  He was retirement eligible in November 2010, and he has an approved retirement date of 29 February 2012.

3.  He attempted to transfer educational benefits on 2 July 2011, but he was denied because he did not have the required additional service time.  He would have incurred an additional service obligation of 2 years because he only had 18 years of service as of 1 August 2009.

4.  No evidence shows he attempted to transfer benefits on or before February 2010 which would have ensured he fulfilled the 2-year service remaining requirement by his projected retirement date of 29 February 2012.  

5.  His remaining contentions were carefully considered.  However, by law, his request to transfer benefits cannot be approved due to his approved retirement date of 29 February 2012.  It is his decision not to postpone his retirement.  Regrettably, there is no basis for granting the requested relief. 

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)                                         AR20110018850



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018850



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1