IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  20110019129 


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

2.  She states the following:

* She served on active duty in the U.S. Army on or after 11 September 2001
* She retired on 20 February 2009
* The Department of Veterans Affairs (VA) or the U.S. Army did not award her 100 percent disability
* As a result, she was ineligible to transfer her education benefits under the provisions of the Post 9/11 GI Bill
* Her son started attending college in August 2010 and is still attending
* He is a great student who has been awarded a scholarship for his high academic accomplishments
* She and her husband have been financing the remainder of their son's education 

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  After having over 26 years of prior service in the Regular Army (RA) and the U.S. Army Reserve, she enlisted in the RA on 22 June 2006 for a period of 
3 years in the grade of sergeant/E-5.   

2.  On 19 February 2009, she was honorably retired by reason of permanent disability in the grade of staff sergeant/E-6. 

3.  In an advisory opinion, dated 28 November 2011, the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, stated, in part:

    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 on or after 1 August 2009. Based on the following details, the Enlisted Professional Development Branch did not recommend administrative relief for the applicant because she was not a member of the service on or after 1 August 2009, which is a requirement established by law. 

    b.  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, but she was not eligible to transfer to either her spouse or her children because the law requires the Soldier to be in the service on or after 
1 August 2009.

   c.  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 System (DEERS) and be eligible for DEERS benefits.  The TEB online database shows the applicant had no eligible dependents to transfer to because she was not eligible for the program since she left service before the incentive was available to her.

    d.  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, she would have incurred no additional service, but she left the service prior to 1 August 2009.

    e.  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 and her characterization of service at the time of her retirement was honorable.
   
    f.  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 applicant's last day in the service was 19 February 2009, which was before the program's implementation.
   
    g.  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.  The applicant could not have taken the required steps because the program was not available.

    h.  The TEB website shows no action was taken by the applicant to transfer any benefit. 

4.  She was provided a copy of the advisory opinion for acknowledgment and/or rebuttal; however, she did not response. 

5.  On 22 June 2009, the 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 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant retired on 19 February 2009. 

2.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  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.  Therefore, this information would not have been available to the applicant prior to the effective date of her retirement.

3.  The law requires a member to be in an active status at the time he/she requests the transfer.  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 or prior and they would have transferred to the Retired List prior to 1 August 2009.  

4.  In view of the foregoing, by law she is not eligible to transfer her education benefits to her dependent under the TEB provision of the Post-9/11 GI Bill.

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)                                         AR20110019129



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ABCMR Record of Proceedings (cont)                                         AR20110019129



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