IN THE CASE OF:	  

		BOARD DATE:  5 April 2012

		DOCKET NUMBER:  AR20110019459 


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 educational benefits to his adopted child under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* the adopted child was born on 16 January 2003
* in 2005 while undergoing readiness processing for deployment to Afghanistan, he was told his adopted child was enrolled in the Defense Eligibility Enrollment Reporting System (DEERS)
* at the time, she was under court supervision, but she was placed in his custody until the adoption proceeded
* when he tried to transfer the benefits, he discovered she had not been enrolled in DEERS
* he was not told his adopted daughter was not enrolled in DEERS
* when the adoption was completed and he turned in the paperwork to his unit, she was still not enrolled
* the deployment site should have alerted him that she was not enrolled in DEERS
* his unit of assignment failed to update his DEERS records
* the identification (ID) card section failed to check her status and only told him that since she was under 10 years of age, she could not receive an ID card
* 
due to a host of errors and the time required to secure the needed documents, the transfer of benefits was not accomplished

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 November 2006
* retirement orders
* adoption decree
* amended birth certificate

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 12 December 1950.

2.  Having prior enlisted service, the applicant was appointed as a Reserve commissioned officer and executed an oath of office on 19 February 1987.  He served in a variety of stateside or overseas assignments as a member of the U.S. Army Reserve and the Army National Guard and he attained the rank of lieutenant colonel (LTC).

3.  He was ordered to active duty on 6 October 2005 and he subsequently served in Afghanistan and Pakistan from 19 October 2005 to 20 October 2006.  He was honorably released from active duty on 23 November 2006.

4.  On 22 January 2006, the District Court of Johnson County, KS, Probate Division, approved the applicant's (and his spouse's) petition for adoption of a child born on 16 January 2003.

5.  The applicant was placed on the Retired List in the rank of LTC on 31 December 2010.

6.  On 15 November 2011, an advisory opinion was obtained from an official at the Office of the Deputy Chief of Staff, G-1, in the processing of this case.  The advisory official recommended disapproval of the applicant's request because there is no evidence the applicant took all necessary steps to ensure the adopted child was enrolled in DEERS (during the period the applicant was eligible for the transfer).  He attempted to transfer the benefit prior to leaving active or Reserve military service.  By Public Law 110-252, only eligible children and/or spouses enrolled in DEERS are eligible to receive the transferred benefits and the Soldier must transfer the benefits while a member of the Selected Reserve or a Regular Army Soldier.  This official also stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day in military service was 31 December 2010.  He would have been eligible to transfer the benefits if he transferred before he left military service, but only if he transferred to an eligible dependent who was enrolled in DEERS.

	b.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  The applicant in this case had more than 33 years of service upon his retirement, so he was eligible to transfer to either his spouse or children (if either had been enrolled in DEERS).

	c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in DEERS and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS).  Wards of State are not eligible for the benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database currently shows the applicant has two eligible dependents enrolled in DEERS:  M____ (spouse) and C____ (child).  The child was recently added to DEERS on 15 June 2011.  The TEB online database would not allow the applicant to transfer the benefits to a child who was not enrolled in DEERS.

	d.  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.  If the applicant transferred his benefits prior to leaving military service he would not have incurred an additional service obligation.

	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.  He received an honorable discharge.

	f.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), 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 educational benefits.  The applicant's last day in the service was 31 December 2010 which was not within 90 days after the program's implementation.

	g.  A Soldier must initially request to transfer benefits on the DOD 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 educational benefits, VA Form 22-1990e, to request to use the benefits.  The applicant did not take the required steps to transfer the benefits.  The TEB website would not allow the applicant to transfer the benefits to his ward of State because this person did not meet the requirements established in law to receive the benefit.  The dependent is now classified as a dependent child in DEERS, but the applicant is no longer in the service.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

7.  The applicant submitted a rebuttal to each paragraph of the advisory opinion as follows:

* he turned in all necessary paperwork during mobilization processing in 2005 and he trusted his G-1 personnel to take care of DEERS
* the child's natural mother contested the termination of her parental rights in the State court system, a process that took 2 years to settle
* when he discovered the omission in DEERS, he personally went to Fort Leavenworth, KS, but he was told the child was less than 10 years old and would not qualify for an ID card
* there is no record of his attempts to transfer the benefit because the website does not allow him to go forward; it simply states the child was ineligible
* he is not submitting this application based on his unawareness of the law; his request is based on the breakdown of communication
* the only documents he received in the so-called massive public campaign was a pamphlet, dated 30 June 2011, after his retirement
* he took the necessary steps to comply with the law in a timely manner
* the Board should consider the totality of the circumstances surrounding his situation

8.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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 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.

9.  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.

10.  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 evidence submitted by the applicant shows he was mobilized on 6 October 2005, but his adoption was approved by the court on 23 January 2006. It is unlikely he could have enrolled the child in DEERS during mobilization processing prior to January 2006.

2.  The applicant underwent demobilization processing upon his redeployment in November 2006 and could have detected the error and enrolled the child in DEERS then.  He could have also enrolled the child in DEERS at any time after his redeployment and in the following years, particularly in 2009 when the transfer of benefits became effective and before December 2010, when he retired.  There is no evidence he exercised due diligence.

3.  There is no evidence the applicant took all necessary steps to ensure the adopted child was enrolled in DEERS during the period the applicant was eligible for the transfer and he attempted to transfer the benefit prior to leaving active or Reserve military service.  By law, only eligible children and/or spouses enrolled in DEERS are eligible to receive the transferred benefits and the Soldier must transfer the benefits while a member of the Selected Reserve or a Regular Army Soldier.

4.  In view of the foregoing evidence, he is not entitled to 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 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)                                         AR20110019459



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ABCMR Record of Proceedings (cont)                                         AR20110019459



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