IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20110023914 


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 Educational Benefits (TEB) under the Post-9/11GI Bill to his dependents. 

2.  The applicant states:

* details of the transferability program were never communicated to him either before he began his transition or during his terminal leave/permissive temporary duty (TDY) status
* although he remained in the local area no effort was made to contact him about the program change
* he was on terminal leave and was away from his former work place from mid June 2009 until his retirement date (31 August 2009)
* the rules and procedures governing 9/11 GI Bill Education Benefits transfer to dependents included the unexpected requirement that the service member execute the transfer while on active duty
* he could have easily executed the transfer if he had received the information 
* the time period came and went without his knowledge of the consequences until months later
* he happened to read about the change and he immediately tried to execute the transfer of his benefits using the on-line procedures
* he was told that the reason the on-line procedures did not work was because he was already retired and was no longer eligible


3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 August 2009
* six DA Forms 31 (Request and Authority for Leave)
* two DD Forms 1172 (Application for Uniformed Service Identification Card DEERS Enrollment)
* Retirement Ceremony Invitation

CONSIDERATION OF EVIDENCE:

1.  On 7 May 1988, the applicant accepted an appointment as a second lieutenant in the U.S. Army Reserve.  He was ordered to active duty for 4 years, effective 30 August 1988.  

2.  On 17 April 1989, the applicant accepted an appointed as a second lieutenant in the Regular Army.  He was promoted through the ranks to lieutenant colonel, effective 1 October 2005.

3.  After completing 21 years and 1 month of net active service this period, the applicant was retired on 31 August 2009 and was placed on the retired list on the following day.

4.  During the processing of this case, on 21 February 2012, an advisory opinion was obtained from the U.S. Army Human Resources Command, Chief, Education Incentives Branch.  The advisory official recommended granting administrative relief based on the following facts:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his family member(s) on or after 1 August 2009.  The applicant's last day of service was 31 August 2009.  He would have been eligible to transfer the benefit if he had transferred before he left the service.

	b.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  The applicant has more the 20 years of service and he was eligible to transfer his benefits to his spouse or children (if he had completed the request before leaving military service).

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child(ren) must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  The TEB online database shows applicant had three eligible family members enrolled in DEERS as of 31 August 2009.  He was eligible to transfer his spouse (Lisa), his daughter (Lindsey), and his son (Landon).  He was not eligible to transfer his benefits to his son (Grayson) due to his son’s status of "ward of the state."  The applicant did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer prior to leaving the service.

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on the date of their transfer request.  If the applicant had transferred his benefits prior to leaving the Selected Reserve, he would not have incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.

	e.  A Soldier must have no adverse action (flag) and have an honorable discharge to transfer benefits.  The applicant had no adverse action.

	f.  A Soldier should not be granted relief based on unawareness of law, program rules, or procedures unless he/she left the service during the implementation phase (first 90 days) of the program.  The applicant's last day in the service was 31 August 2009, which was within the 90-day window. 

	g.  A Soldier must initially request benefits on the Department of Defense's TEB online database which was operational on 29 June 2009, along with other required steps.  The applicant did not take any of the required steps because he claims he was not aware of the requirements.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least one month of benefits prior to separation.  If the service member allocates zero 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.

	i.  The Department of Veterans Affairs (DVA) is restricted to pay for education benefits by compensating no more than 1 retroactive year from the date a claim is received by the DVA.  No evidence was provided by the applicant that his dependents made a previous claim to the DVA.  If the applicant is granted relief the beginning date for his dependents to use the transferred benefits will be the date relief is granted unless previously specific claims were submitted to DVA (verified by the DVA upon approval).

5.  On 23 February 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 6 March 2012, he concurred with the advisory opinion with the following exceptions:

* his son Grayson has been his legally adopted son since 13 September 2000
* he does not know the reason for his son being declared a "ward of the state" within the DEERs system
* he has since rectified the situation with his local personnel office

6.  With his letter of concurrence, the applicant provided a copy of a
DD Form 1172 that shows his son's status in DEERS was changed from "ward of the state" to child.  He also submitted a Final Decree on Adoption which shows his adoption of his son Grayson was granted on 13 September 2000.

7.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 110-252, House of Representatives, 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

8.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  The general eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service.

	b.  Service members also must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization) and must have received an honorable discharge at the conclusion of active service.

9.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, the service member is entitled to transfer benefits to his dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732 as follows:

* service members eligible for retirement on 1 August 2009 – no additional service is required
* service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required
* service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required
* service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required
* service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required
* active duty service members who separate, retire, transfer to the Reserve, or are discharged on or prior to 1 August 2009 – are not eligible to elect transferability

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he applied for and was approved to transfer his Post-9/11 GI Bill benefits to his eligible dependent children prior to retirement on 31 August 2009 based on a lack of available information has been carefully considered and found to have merit.

2.  The available evidence shows he was fully eligible for transfer of his educational benefits to his dependents under the Post-9/11 GI Bill, but he contends he was not aware of the requirements. 

3.  The advisory opinion recommends administrative relief because he left the service within 90 days of the implementation of the program.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the 
requirements to transfer benefits prior to leaving the military.  The applicant retired on 31 August 2009, which was within 90 days of implementation of the program.

4.  In view of the above and in the interest of equity, his request for relief should be granted.


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 showing the applicant filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his dependents prior to his retirement, provided all other program eligibility criteria are met.




      _______ _   _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)                                         AR20110023914



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ABCMR Record of Proceedings (cont)                                         AR20110023914



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