IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110019475 


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 transfer of her educational benefits to her dependents under the Post 9/11 GI Bill Transferability Program.

2.  The applicant states:

* she retired from active duty on 31 October 2009 after completing 20 years of service
* she out-processed at Fort Bliss, TX in July/August 2009
* the Fort Bliss Education Office did not know enough about the Post 9/11 GI Bill Transferability Program to properly advise retirees
* she was told to make application to transfer benefits when her dependents were ready to use them

3.  The applicant provides:

* a personal letter
* numerous emails

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years of creditable active service, the applicant retired from active duty on 31 October 2009 in the rank of lieutenant colonel.

2.  During the processing of this case, on 27 December 2011, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, which 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 dependents (on or after 
1 August 2009).  The applicant’s last day in service was 31 October 2009.  She would have been eligible to transfer the benefit if she transferred them before she left the service.

	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.  She had more than 20 years of service upon retirement, so she was eligible to transfer to either her spouse or children (if she had completed the request before leaving military service).

	d.  a Soldier may only transfer to eligible dependents.  She had three eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.  She did not complete the requirements in the TEB online database because she claims she was not aware of the requirement to transfer prior to leaving the service. 

	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.  If the applicant had transferred her benefits prior to leaving military service she would not have incurred an additional service obligation because she had an approved retirement date on or after 1 September 2009, or on or before 1 June 2010.

	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.  She 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.  Her last day in the service was 31 October 2009, which was within 90 days after the program’s implementation.

	h.  a Soldier must initially request to transfer benefits on the DOD's TEB online database.  The TEB online was operational on 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.  The applicant claims she was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	i.  changes to the number of months allocated to dependents can be made at anytime, to include once you leave 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, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.
  
	j.  the Department of Veterans Affairs (VA) is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by VA.  No evidence was provided by the applicant that her dependents made a previous claim to VA.  If the applicant is granted relief the beginning date for her dependents to use the transferred benefits will be the date granted relief unless previous specific claims were submitted to VA (verified by VA upon approval). 

4.  The advisory official recommends administrative relief for the applicant because she left service within 90 days of the implementation of the program.  The official states although significant measures were taken to disseminate the information to all Soldiers within Army components during the initial phase of the program, many Soldiers that left service during the first 90 days of the program were not fully aware of the requirement to transfer the benefit prior to leaving military service.

5.  The advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal, but there was no response.

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 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.

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 evidence of record shows the applicant was fully eligible to transfer her education benefits under the Post 9/11 GI Bill Transferability Program prior to retirement.  However, because of the newness of the program and confusion concerning its implementation she did not make application prior to retiring.

2.  The advisory opinion points out:

* many Soldiers that left the service during the first 90 days of the program were not fully aware of the requirement to transfer Post 9/11 benefits prior to leaving military service
* the applicant’s last day in service was 31 October 2009
* she would have been eligible to transfer the benefit if she had transferred the benefits before she left the service

3.  The applicant retired on 31 October 2009, which was within 90 days after the program’s implementation.  Therefore, per the advisory opinion recommendation, it would be appropriate to correct her military records to show she elected to transfer benefits under the Post 9/11 GI Bill Transferability Program to her eligible dependents prior to her retirement date.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting her military records to show she elected to transfer he education benefits under the Post 9/11 GI Bill Transferability Program to her eligible dependents prior to her retirement date.




      _______ _   __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)                                         AR20110019475



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ABCMR Record of Proceedings (cont)                                         AR20110019475



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