IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120003101 


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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill.

2.  The applicant states he began his transition leave in November 2009 and retired from the Army on 31 January 2010.  During his transition processing no one was able to explain how retirees would be able to transfer their entitlements.  Counselors and the regulation stated he would need to reenlist because the Post-9/11 GI Bill was a retention incentive.  After he retired, he found out he only needed to have 20 years of service as of 1 August 2009 to be eligible for the benefit, but needed to be on active duty to transfer the benefit.  He served over 22 years with multiple combat tours and he would like to be able give something to his child.

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After completing 22 years, 9 months, and 23 days of creditable active service, the applicant retired from the Regular Army on 1 February 2010 in the rank/grade of sergeant first class (SFC)/E-7.

3.  In a letter to the board he states, in effect, he was told by counselors and he believed he would need to reenlist for 6 additional years to qualify for Post-9/11 GI Bill benefits.  He started transition leave in November 2009.  It was not until after he retired on 31 January 2010 that he found out he met the requirements to receive the benefit but that he had to be on active duty in order to transfer the benefit to his family members.  His oldest son accumulated over $40,000.00 of debt and he wants to do whatever he can to ensure his youngest son does not have the same financial struggle.  If he would have been aware that he needed to be on active duty to transfer his education benefits he would have surely done so before retiring.  He contends the implementation of the program was in its fledgling phase and no one really knew how it was going to work out.  He served over 22 great years in the U.S. Army in multiple combat zones and sacrificed many years on deployments away from his family.  Being allowed to transfer his benefits to his son would ease a heavy financial burden and help to get him through school.

4.  During the processing of this case, on 27 March 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch.  The advisory official recommended denial of administrative relief to the applicant because there was no evidence the applicant attempted to transfer his benefits prior to leaving military service, that he was given false information by a reliable source about the rules of transferring education benefits, or that he started transitional leave on or before 1 November 2009.  The advisory official confirmed that the applicant would have been eligible to transfer the benefit if he transferred the benefit before he left service.

5.  The advisory opinion stated that on 22 June 2009 Department of Defense (DOD) guidance established the eligibility criteria for the Post-9/11 GI Bill and transfer of unused education benefits to eligible family members.  The policy states an eligible individual is 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:

	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 for 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; and

	d.  for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required.

6.  The advisory opinion further stated that on 10 July 2009 the Army released the Post-9/11 GI Bill Implementation Policy that 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.  Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 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 provided:

	a.  The Soldier is 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).

	b.  The Soldier had 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.

	c.  The Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible family member 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.

	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.  

	e.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.

	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, Department of Defense, and Department of Veterans Affairs (DVA) 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. 

	g.  A Soldier must initially request to transfer benefits on the Department of Defense's 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 DVA access.  The respective family member must then submit an application for VA education benefits, VA-Form 22-1990e, to request to use the benefits.

	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 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.

	i.  The DVA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by DVA.

7.  On 6 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests approval of TEB under the Post-9/11 GI Bill.

2.  The applicant contends he was misinformed about his Post-009/11 GI Bill eligibility; therefore, he failed to transfer his benefit prior to retiring.  There is insufficient evidence to show he was improperly briefed prior to the start of his transition leave.  It is probable that some confusion around the program rules existed during the first 90 days of the its implementation.  Nonetheless, the Army conducted an extensive media campaign in the months following the implementation on 1 August 2009 and it is also probable that accurate information was available prior to his retirement on 1 February 2010 which would have afforded him the opportunity to seek clarification and take action on this matter prior leaving active duty.

3.  The available evidence shows he retired from active duty on 1 February 2010 having met the time in service requirement for the education benefit.  However, he failed to transfer the benefit prior to leaving active duty and public law prohibits the transfer after separation.  Lacking evidence to the contrary, he is not eligible to transfer benefits under the program to his family members.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120003101



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ABCMR Record of Proceedings (cont)                                         AR20120003101



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