IN THE CASE OF:
BOARD DATE: 8 May 2012
DOCKET NUMBER: AR20110020425
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, an exception to policy to transfer educational benefits to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was separated from the U.S. Army Reserve (USAR) on 1 July 2010 due to his mandatory separation date and placed into the Retired Reserve. He and his wife attended briefings about benefits including the Post 9/11 GI Bill and the authorization to dedicate the transfer of a percentage of the education benefit to a child or spouse. However, it was not pointed out the dedication of a percentage of the Post 9/11 GI Bill Education Benefits for transfer to his child must be completed while on orders/prior to separation. At the time of separation his son was entering the 11th grade in high school and his intentions were not clear concerning college. The applicant had intentions of additional college and obtaining a teaching certificate. Because of these circumstances and the belief that he could dedicate these education benefits at any time, he chose not to dedicate a portion of the education benefits until his son was committed to go to college. If he had known of the "before separation requirement" he would have dedicated a portion of the benefits. Every officer and noncommissioned officer he spoke with were of the belief that this transfer is an earned benefit and can be completed anytime before the 15-year deadline.
3. The applicant provides a letter, dated 13 September 2011, to his Congressional representative.
CONSIDERATION OF EVIDENCE:
1. He was commissioned a second lieutenant in the USAR on 11 May 1985.
a. He served on active duty from 23 February 1986 to 30 July 1995. He was released from active duty and transferred to the USAR Control Group (Reinforcement) on 30 July 1995.
b. On 5 November 1999, he was assigned to Headquarters and Headquarters Company, 561st Combat Support Group. On 17 January 2001, he was transferred to the USAR Control Group (Reinforcement).
c. He served on active duty from 1 September 2006 to 4 March 2007. He was released from active duty and transferred to the USAR Control Group (Reinforcement) on 4 March 2007.
d. On 29 March 2007, he was assigned to the 394th Combat Support Services Support Battalion (CSSB).
e. He was released from the 394th CSSB and assigned to the Retired Reserve effective 1 July 2010.
2. On 9 January 2012, an advisory opinion was obtained in the processing of this case. An official in the Office of the Deputy Chief of Staff, G-1, recommended disapproval of the applicant's request because he was not a member of the service on or after 1 August 2009.
3. On 26 February 2012, the applicant submitted a rebuttal to the above opinion. He stated he was active in the reserve on or after 1 August 2009. He was assigned to the 394th CSSB in Fremont, NE. His last day of service was 30 June 2010. He was not aware of the requirements for transfer of funds because he was not properly briefed during his out processing by the Department of Veterans Affairs (VA), battalion, or other agencies.
4. Previous opinions from the Office of the Deputy Chief of Staff, G-1 have indicated requests for exception to policy to transfer educational benefits should not be granted relief based on unawareness of the law, program, rules, or procedures, unless he left the service during the implementation phase (first 90 days of the program). The Army, Department of Defense (DOD), and 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 of military service was 30 June 2010, which was not within 90 days after the program's implementation.
5. Public Law 110-252, dated 30 June 2008, authorized the Post-9/11 GI Bill which became effective 1 August 2009. Section 3319 of this law states that an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.
6. Department of Defense Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, subject: Post-9/11 GI Bill, states a veteran has 15 years to use his or her educational benefits from the date of his or her discharge. This 15 years refers only to the veteran using the benefit. Paragraph 3d of the DTM specifically addresses how long dependents have to use the benefits, once transferred. Spouses have 15 years after the Soldier leaves military service to use the benefits and children have up to age 26 to use the benefits.
7. 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 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 Component service.
8. 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.
9. 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. Notwithstanding the opinion provided by an official in the Office of the Deputy Chief of Staff, G-1, the applicant's military records show he was in an active status on 1 August 2009. Therefore, he was fully eligible to transfer his educational benefits under the TEB prior to his retirement but he did not do so. His statement specifically states he chose not to dedicate a portion of the education benefits until his son was committed to go to college.
2. DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must be on active duty or a member of the Selected Reserve at the time of the transfer of the benefits.
3. DTM 09-003 states veterans have 15 years to use their educational benefits after discharge. The 15 years he referred to has nothing to do with the requirement to transfer benefits while still in an active status (prior to discharge or retirement). The DTM also provides the period dependents have to use the benefits once transferred.
4. The law requires a member to be in an active status at the time he/she requests the transfer. The applicant is not in an active status and he did not leave military service during the implementation phase of the program. Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his family members.
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) AR20110020425
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