IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120000807 


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 his dependent.  

2.  The applicant states he was unable to transfer his MGIB benefits to his dependent child because he was on transition leave when the transfer policy went into effect.  He was not notified of his eligibility to transfer the benefit at the time.  Had he been notified he would have immediately done so. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* DD Form 1172 (Application for Uniformed Services Identification Card - DEERS (Defense Eligibility Enrollment Reporting System) Enrollment

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Regular Army on 11 January 1990.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.

2.  He underwent a pre-separation briefing in connection with his retirement and he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  On 30 September 2009, he was honorably retired and placed on the Retired List in his retired rank/grade of SFC/E-7.  He was credited with 20 years, 2 months, and 20 days of active service.

4.  On 21 February 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  The advisory official recommended approval of the applicant's request.  The official stated that Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, section 3020 Public Law 110-252, 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.  Based on the details below, the official recommended administrative relief for the applicant because he left service during the first 90 days of the implementation of the program.

	a.  A Soldier must be currently on active duty or a member of the Selected Reserves at the time of transfer of education benefits to his or her family members on or after 1 August 2009.  The applicant's last day in service was
30 September 2009.  He would have been eligible to transfer the benefits before he 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 20 years of service.

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member 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 family member 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 benefit.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The TEB online database shows the applicant has six eligible family members enrolled in DEERS:  spouse and five children, but he did not complete the requirements because he states he was unaware of the requirements.

	d.  Must agree to serve the prescribed additional service obligation based on time in service on 1 August 2009.  The applicant had more than 20 years of service on that date.
	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 his record.  He is currently on active duty.

	f.  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.  The Army, DOD, and the 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 TEB.  The applicant's last day of service was on 30 September 2009, which is within 90 after program's implementation.

	g.  A Soldier must initially request to transfer benefits on the DOD’s 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 family member must then submit an application for VA education benefits,
VA-Form 22-1990e, to request to use the benefits.  The applicant claims he was unaware of the requirement, so none of the steps to transfer the benefit were taken.

	h.  Changes to the amount of months allocated to family members can be made at anytime, to include once you 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, they are not authorized to transfer unused benefits.

5.  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.  He did not respond.

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 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 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.  The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but did not do so.  The program was implemented in July 2009.  The applicant retired on 30 September 2009.  Prior to retirement, he did not apply for the transfer of benefits while on active duty.

2.  The DOD, Army, and the VA 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 meet various criteria - most importantly to be in an active status at the time of application - to qualify to transfer benefits to an eligible family member.

3.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.  

4.  The applicant's retirement date was 30 September 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.

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 Post 9/11 GI Bill benefits to his family members 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)                                         AR20120000807





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ABCMR Record of Proceedings (cont)                                         AR20120000807



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