BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120002954 


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

2.  The applicant states:

* As an Army Reservist he completed two active duty Post 9/11 tours totaling 28 months
* His last tour ended on 31 July 2007
* He is eligible for the Post 9/11 GI Bill
* He was an active U.S. Army Reserve (USAR) member in 2009
* His retirement, after 30 years of service, was effective on 1 June 2010
* The transfer of educational benefits (TEB) program was not common knowledge and he was led to believe he could activate this option before 2013
* Had he known the specific criteria he may have been able to change his USAR status to active duty

3.  The applicant provides:

* Post 9/11 GI Bill Transferability Policy Quick Reference
* DD Forms 214 for the periods ending 31 July 2007 and 17 October 2002
* USAR assignment orders
* Correspondence with the Education Incentives Branch
* Letters from Members of Congress 

CONSIDERATION OF EVIDENCE:

1.  After completing more than 29 years of service in the Regular Army and USAR, the applicant was transferred to the Retired Reserve effective 1 June 2010 in the rank of colonel.

2.  On 30 March 2012, during the processing of this case an advisory opinion was obtained from the Chief, Education and Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, who states, in summary:

   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 was under a call to active duty in an Individual Mobilization Augmentee (IMA) status from 2 March 2009 to 14 January 2010; therefore, he was a member of the Selected Reserve during that time.  Part of this timeframe is after the implementation phase (first 90 days, 1 August to 1 November 2009); therefore, he does not fall under the exceptions granted for those who retired during the implementation phase.  Also, he was transferred from an IMA status to an Individual Ready Reserve (IRR) status on 15 January 2010.  As a member of the IRR, he would not have been eligible to transfer education benefits.  He was transferred to the Retired Reserve effective 1 June 2010.    

	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 29 years of service upon his transfer to the Retired Reserve.  He would have been eligible to transfer education benefits if he had done so during his service in the Selected Reserve, prior to 15 January 2010.

	d.  A Soldier may only transfer benefits to eligible dependents.  The TEB online database shows he had one eligible dependent enrolled in the Defense Eligibility Enrollment Reporting System as of 14 January 2010, his last day in the Selected Reserve.  If he had met all the prerequisites (including being a member of the Selected Reserve), he would have been eligible to transfer his education benefits to his eligible dependent.  If he would have submitted a request via the TEB online database on or after 15 January 2010, he would have been disapproved because he was a member of the IRR, not a member of the Selected Reserve, and was subsequently transferred to the Retired Reserve effective 1 June 2010.

	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 successfully transferred education benefits prior to transferring to the IRR on 15 January 2010, he would not have incurred an additional service obligation, but he was not eligible because he was transferred to the IRR on 
15 January 2010 and did not reenter the Selected Reserve prior to his transfer to the Retired Reserve effective 1 June 2010.

	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 was transferred to the Retired Reserve effective 1 June 2010; therefore, he has not been discharged yet.

	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.  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 education benefits.  His last day in the Selected Reserve was 14 January 2010, which was after the program's implementation phase.  

	h.  A Soldier must initially request to transfer benefits on the DOD 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 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 he did not successfully transfer education benefits while eligible (prior to his transfer from IMA status to IRR status effective 15 January 2010).

	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 benefit.

3.  The advisory official does not recommend administrative relief for the applicant because he did not request the Post 9/11 GI Bill transfer of education benefits while a member of the Selected Reserve on or after 1 August 2009 and prior to his transfer from the Selected Reserve to the IRR effective 15 January 2010, which is a requirement established in law.

4.  On 2 April 2012, 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 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.

	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 the maximum amount of time allowed by such policy or statute.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the criteria for the Post-9/11 GI Bill transferability program was not well publicized or understood.  However, the advisory official points out the Army, DOD, and 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.   The advisory official also states 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 Selected Reserve was 14 January 2010, which was after the program's implementation phase.  

2.  The available evidence does not shows he requested to transfer educational benefits under the Post 9/11 GI Bill while a member of the Selected Reserve on or after 1 August 2009 and prior to his transfer from the Selected Reserve to the IRR, effective 15 January 2010, which is a requirement that is established in law.  Regrettably, there is no basis for granting the requested relief. 

3.  The applicant and all others concerned should know that 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.

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)                                         AR20120002954



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002954



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1