IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110019080 


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

2.  The applicant states he understood that he could transfer his benefits to his child after his retirement because he had completed 20 years of active service provided the benefits are used within 15 years after retirement.  He was on transition leave from 12 May 2009 to 31 July 2009 and he was not informed of the requirements.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 31 (Request and Authority for Leave).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 March 1989 and he held military occupational specialty 68W (Health Care Specialist).  He served in a variety of stateside and/or overseas assignments and he attained the rank of sergeant first class (SFC)/E-7.

2.  He underwent a pre-separation briefing on 16 March 2009 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (Montgomery GI Bill)) of his DD Form 2648 in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  He signed out of his unit on transition leave on 12 May 2009.  His leave was approved through 31 July 2009, his date of retirement. 

4.  On 31 July 2009, he was honorably retired and placed on the Retired List in his retired rank of SFC/E-7 on 1 August 2009.  He was credited with over 20 years of creditable active service.

5.  On 31 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 he was not a member of the service on or after 1 August 2009, which is a requirement established in law.  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 August 2009.  The applicant retired on 31 July 2009.  He would not have been eligible to transfer the benefits before he retired.  

	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 but he was not eligible to transfer the benefit to either his spouse or children because he was not in the service on or after 1 August 2009.

	c.  Have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.  The applicant had no eligible dependents because he left the service prior to the effective date of this program.  Therefore, the incentive was not available to him.

	d.  Agree to complete any additional service obligation.  If the applicant transferred his benefits prior to leaving military service, he would not have incurred any additional service obligation because he had more than 20 years.  He also had an honorable discharge and no adverse action.

	e.  Initially request the transfer through the Department of Defense (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.  Since the applicant states he was unaware of the program process, none of these steps were taken. 

6.  The official at the Office of the Deputy Chief of Staff, G-1 states that individuals 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 31 July 2009 which was prior to program implementation.

7.  The Office at the Deputy Chief of Staff, G-1 also states that changes to the number of months allocated to dependents can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation.  If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

8.  The VA is restricted to pay for education benefits compensating no more than one retroactive year from the date a claim is received by the VA.  There is no evidence that the applicant made a previous claim to the VA.  If he were granted relief, the beginning date for his dependents to use the transferred benefits would be the date of relief unless previous specific claims were submitted to the VA and verified by the VA upon approval.

9.  The applicant was provided a copy of this advisory opinion but he did not respond. 

10.  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.

11.  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.

12.  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 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 served on active duty from 8 March 1989 to 31 July 2009.  The Post 9/11 GI Bill program was not in effect during his period of military service.  Although he retired on 31 July 2009, one day prior to the implementation of the program, the law states only those individual who served on active duty on or after 1 August 2009 are eligible to transfer education benefits under the provisions of the Post 9-11 GI Bill. 

2.  Regretfully, based on the law that is in effect, he is not eligible for the transfer of benefits. 

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)                                         AR20110019080



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ABCMR Record of Proceedings (cont)                                         AR20110019080



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