IN THE CASE OF:	  

		BOARD DATE:	  3 MAY 2012

		DOCKET NUMBER:  AR20110020940 


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 her family member members.

2.  The applicant states she was not made aware that the benefit that took effect on 1 August 2009 included the right to transfer benefits to her spouse or children, or that the transfer had to be approved before retiring.  During her transition brief and transitional leave, she was not informed of the pending benefit.  Had she known of the benefit, she would have extended her active duty service which would have allowed her to transfer the education benefits.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 93 (Record of Emergency Data).

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Regular Army (RA) commissioned officer on 29 May 1983.  She served in a variety of stateside and/or overseas assignments and she attained the rank of colonel (COL).

2.  On 31 July 2009, she was retired by reason of sufficient service for retirement and she was placed on the Retired List in her retired rank of COL on 1 August 2009.  She was credited with 26 years, 2 months, and 2 days of creditable active service.

3.  In the processing of this case, on 10 January 2012, an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC) Chief, Education and Incentives Branch.  The advisory official recommended disapproval of the applicant's request because she 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.  She would not have been eligible to transfer the benefits before she 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 26 years of service but she was not eligible to transfer the benefit to either her spouse or children because she was not in the service on or after 1 August 2009.

	c.  Have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  The applicant had four children enrolled in DEERS. If she had been eligible to transfer the benefits, she would have been allowed to transfer those benefits to her spouse or three children.  She left the service prior to the effective date of this program.  Therefore, the incentive was not available to her.

	d.  Agree to complete any additional service obligation.  If the applicant transferred her benefits prior to leaving military service, she would not have incurred any additional service obligation because she had more than 20 years.  She 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 Department of Veterans Affairs (VA).  The respective dependent must then submit an application for VA benefits.  Since the applicant states she was unaware of the program process, none of these steps were taken.

4.  The advisory official further stated 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.  The official also states that changes to the number of months allocated to family members 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.

5.  On 16 November 2011, the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal. On 24 January 2012, the applicant replied wherein she stated:

* Although the advisory opinion is technically correct, it did not tailor the response to her unique situation
* There was much confusion at the time regarding the implementation of this program and Soldiers were not properly informed
* The Fort Sill, OK, Education Center did not inform her of the transferable Post-9/11 MGIB benefits
* If she had been properly counseled or informed, she would have extended her stay on active duty and her request would have been approved

6.  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.

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.

8.  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 29 May 1983 to 31 July 2009.  The Post-9/11 GI Bill program was not in effect during her period of military service.  Although she retired on 31 July 2009, 1 day prior to the implementation of the program, the law states only those individuals 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.  Regretfully, based on the law that is in effect, she is not eligible for the transfer of benefits.

2.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110020940



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ABCMR Record of Proceedings (cont)                                         AR20110020940



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