BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20120002773 


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 the transfer date of his Post-9/11 GI Bill to his family members be retroactive to 1 August 2009, and thus adjusting his military service obligation date to 31 July 2013. 

2.  The applicant states:

* he was briefed regarding the transfer of education benefits and he was given a website to request the transfer and he did so in June 2009
* in August 2009, he received a letter from the Department of Veterans Affairs (VA) that stated his application was approved
* the letter was written in a such a way that he did not understand he needed to take additional steps to complete the process
* in November 2011 a colleague told him that he needed to complete the process
* as a result of completing the necessary steps, on 4 November 2011, his military service obligation date was established as 3 November 2015

3.  The applicant provides:

* VA Form 20-8992, dated 3 June 2009
* VA Form 21-0760 (VA Benefits in Brief)
* VA Certificate of Eligibility, dated 11 June 2009
* Department of Defense (DOD) Manpower Data Center, letter, 
dated 26 January 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 August 1992.  He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments, and he attained the rank/grade of sergeant first class/E-7.

2.  He submitted the following documents:

* A letter, dated 3 June 2009, from the VA informing him that his application for benefits was received and was being processed
* A VA letter explaining various VA benefits
* VA letter, dated 11 June 2009, approving his entitlement to Post 9/11 Montgomery GI Bill (MGIB) benefits and explaining what he should do 
* Letter, dated 26 January 2012, approving his 4 November 2011 request to transfer educational benefits to his family members and establishing his military obligation date through 3 November 2015

3.  An advisory opinion was obtained from the Office of the Chief, Education Incentive Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 14 March 2012.  The advisory official recommended disapproval 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, § 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 did not recommend administrative relief for the applicant because he did not comply with published guidance for requesting the transfer of education benefits.

	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 dependent (on or after 1 August 2009).  The applicant is currently serving in the U.S. Army.  He transferred his Post 9/11 GI Bill benefits on 4 November 2011. 

   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 had 16 years of service as of the program’s implementation date of 1 August 2009; therefore, he was eligible to transfer to either his spouse or his children.

   c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (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 benefit.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The online database shows the applicant has four eligible dependents enrolled in DEERS:  spouse and three children.  He transferred benefits to his dependents on 4 November 2011.

   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.  He transferred education benefits via the TEB online database on 4 November 2011; therefore, he incurred an Active Duty Service Obligation (ADSO) and a TEB Obligation End Date of 4 November 2015.  He referenced his interaction with the VA regarding the Post 9/11 GI Bill in June 2009.  The VA issued a Certificate of Eligibility for Post 9/11 GI Bill to him on 11 June 2009, likely based on his submission of VA Form 22-1990, Application for VA Benefits.  The VA Certificate of Eligibility for the applicant addresses his eligibility and usage of the Post 9/11 GI Bill, not his dependents’ benefits.  Unfortunately, he did not comply with the Department of the Army guidance regarding the transfer of education benefits on the TEB online database.  If he had complied with published guidance in transferring benefits via the TEB online database on 1 August 2009, his ADSO and TEB Obligation End Date would have been 1 August 2013. 
   
   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 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 education benefits.  He has been in the U.S. Army beyond the implementation phase; therefore, he has had access to information regarding the requirement to request TEB through the DOD TEB online database.
   
   g.  A Soldier must initially request to transfer benefits on the Department of Defense’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 dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to request to use the benefits.  He submitted paperwork to the VA without requesting approval from the DOD first.  Therefore, he did not take the required steps to transfer benefits in the timeframe he states. 

   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.  

4.  The applicant did not respond to the advisory opinion.

5.  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.

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

7.  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.  The applicant submitted a request to convert his educational benefits to the Post 9/11 MGIB on 3 June 2009 and he received an interim letter from the VA informing him his application was being processed.  At the time he submitted his application, the transfer of benefits was neither operational nor implemented by the Army.  Nevertheless, he received approval from the VA to convert his own benefits.  

2.  The applicant did not and could not have requested a transfer of his benefits to his dependents on 3 June 2009.  He did so on 4 November 2011.  Since he had completed 16 years of service on 1 August 2009, when this program was implemented, he incurred a 4-year active duty obligation effective 4 November 2011 (the date he requested the transfer) through 3 November 2015. 

3.  The DOD, VA, and the Army 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.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly a year after the program was implemented.

4.  The applicant's service and his sincerity are not in question.  However, since the applicant has been on active duty since the program was implemented in August 2009, over 2 years after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  There is neither an error nor an injustice in the applicant's transfer of benefits processing. Therefore, 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)                                         AR20120002773



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ABCMR Record of Proceedings (cont)                                         AR20120002773



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