IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110022465 


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 dependents under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* he was told to wait to put his dependents in for the Post 9/11 education benefits
* he was told to wait until his dependents were 18 years of age
* he was told when he applied for the benefits that his daughter (born on 19 August 1991) received this benefit for 12 months
* he continues to have trouble transferring this benefit to his son who was born on 2 August 1993

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 2006
* Dependent Eligibility Enrollment Reporting System (DEERS) Family printouts

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 2 December 1962.

2.  Having prior service in the U.S. Marine Corps, he enlisted in the U.S. Army Reserve (USAR) on 16 July 1986.  He served in a variety of stateside or overseas assignments as a member of the USAR, including tours on active duty, and he attained the rank of sergeant first class (SFC).

3.  He was transferred to the Retired Reserve on 10 July 2010.

4.  On 24 January 2012, an advisory opinion was obtained from an official at the Chief, Education and Incentive Branch, Fort Knox, KY, in the processing of this case.  The advisory official recommended disapproval of the applicant's request because there is no evidence the applicant attempted to transfer the benefit to his son prior to leaving active or Reserve military service.  Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.  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 9 July 2010.  He would have been eligible to transfer the benefits if he transferred before he left military service.

	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 26 years of service upon his retirement, so he was eligible to transfer the benefit (if he had completed the request before leaving military service).

	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 four eligible dependents enrolled in DEERS:  Ja___ (spouse), In___ (child), St____ (child), and Is____ (child).  The applicant had successfully transferred 12 months of education benefits to In___ on 11 August 2009.  However, he did not transfer any benefits to St____ or Is_____ in the TEB database because he claims he was unaware of the requirement to transfer prior to leaving the military.


	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 9 July 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.

5.  The applicant was provided with a copy of this advisory opinion but he did not respond.

6.  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.

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 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.  On 11 August 2009, prior to his transfer to the Retired Reserve and upon implementation of this program, the applicant successfully transferred 12 months of education benefits to his daughter In____.  However, he did not complete any requirements to transfer a portion of the education benefits to his other dependents St____ or Is____ despite being fully aware of the program.  


2.  He continued to serve in the Selected Reserve until 9 July 2010 when he was transferred to the Retired Reserve.  There is no evidence he exercised due diligence or took all necessary steps to ensure the transfer to his other dependents during the period the applicant was eligible for the transfer or that he attempted to transfer the benefit prior to leaving active or Reserve military service.  

3.  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 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)                                         AR20110022465



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ABCMR Record of Proceedings (cont)                                         AR20110022465



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