IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110021499 


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, correction of his records to show he elected transfer of his educational benefits to his dependents under the Post-9/11 GI Bill transferability program.

2.  The applicant states:

* he was not once informed he needed to transfer his GI Bill benefits prior to retirement otherwise he would lose the option forever
* only after he retired and attempted to transfer benefits to his children in 2010 did he discover that it was too late
* prior to retirement he attended every transition class and followed every instruction
* the transition team at Fort Lewis, WA, failed to notify him of this critical detail regarding his GI Bill transfer option prior to his retirement

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years, 4 months, and 7 days of creditable active service, the applicant retired from the Regular Army on 31 May 2009 in the rank/grade of sergeant major/E-9.

2.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, dated 6 January 2012, who states:

	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 on or after 1 August 2009.

	b.  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 May 2009.  He is not eligible to transfer his Post-9/11 GI Bill benefits.

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse or at least 10 years of eligible service to transfer to eligible children.  He had more than 20 years of service upon his retirement but he was not eligible to transfer benefits to his dependents because the law requires Soldiers to be in the service on or after 1 August 2009.

	d.  A Soldier may only transfer benefits to eligible dependents.  He had two eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.  However, he was not eligible for the program because he separated before the program was implemented.  This incentive was not available to him.

	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 been in the service on 1 August 2009 he would not incurred an additional service obligation, but he was not eligible because he left military service prior to 1 August 2009.

	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.  He 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.  His last day in the service was 31 May 2009 which was before the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the Department of Defense (DOD) Transferring Educational Benefits (TEB) online database.  The TEB online database 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 Department of Veterans Affairs (VA) access.  The respective dependent must then submit an application for VA educational benefits to request to use the benefits.  He did not take the required steps to transfer benefits because the program was not yet available.

	i.  Changes to the amount of months allocated to dependents can be made at anytime, to include once they 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, 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 because the program was not yet available.

3.  The advisory official does not recommend administrative relief for the applicant because he was not a member of the service on or after 1 August 2009 which is a requirement established by law.

4.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

5.  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 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

The applicant's contentions were carefully considered.  However, since he retired on 31 May 2009 prior to the implementation of the Post-9/11 GI Bill transferability program, he is not eligible to transfer benefits under the program to his dependents.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The applicant and all others concerned should know this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20110021499



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ABCMR Record of Proceedings (cont)                                         AR20110021499



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