IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120003158 


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 his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependents.

2.  The applicant states:

	a.  Prior to his retirement, he went to the education center and gave the indication that he had the intention to pass his Post-9/11 GI Bill to his son.  He thought he completed everything necessary.  When he went back last week to transfer a semester from his son to his spouse, he was shocked to find that the transfer was incomplete.  Not only was he not able to pass benefits from his son to his spouse, none had been transferred to his son.

	b.  If this was his fault, it was at least clearly noted in his file that he had visited the education center at Fort Hood, TX, prior to his retirement and declared that he wanted to pass all Post 9/11 GI Bill benefits to his son and that at that time he did not intend to use any for himself.  It was stated that once he signed to his son, while on active duty, he could take back any number of hours and transfer them to his spouse or himself.  Please don't allow this error, on whose ever fault it lies, especially if it is his error, to affect the future of his son.  He served 24 years and prior to his retirement, he had shared with his spouse that at least their son could go to any school he desired.

3.  The applicant provides no additional evidence.


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve and executed an oath of office on 27 May 1987 with a concurrent call to active duty.  He served in staff and leadership positions and attained the rank/grade of lieutenant colonel (LTC)/O-5 in the Regular Army.

2.  On 18 November 2010, he underwent a pre-separation briefing wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (Montgomery GI Bill (MGIB)) of his DD Form 2648 (Preseparation Counseling Checklist) 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 31 May 2011, he was retired by reason of sufficient service for retirement and on 1 June 2011 he was placed on the Retired List in the rank LTC.  He completed 24 years and 4 days of creditable active service.

4.  In the processing of this case an advisory opinion, dated 30 March 2012, was received from the Chief, Education Incentives Branch, U.S. Army Human Resources Command.  The advisory official recommended disapproval of the applicant's request and stated:

	a.  Public Law 110-552 establishes legal limitations on the transferability of unfunded Post 9/11 GI Bill benefits and limits eligibility to 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.  The applicant's last day in service was 31 May 2011.  He would have been eligible to transfer the benefit if he transferred before he left the service.

	b.  A Soldier must have 6 years of eligible service to transfer the benefits to a spouse and 10 years to transfer the benefits to eligible children.  The applicant had over 24 years of service upon his retirement so he was eligible to transfer the benefit to either his spouse or child if he had completed the request before he left the service.

	c.  A Soldier must have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  Children lose eligible family member status upon turning 21 years of age, 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.  The TEB online database shows the applicant had two eligible family members enrolled in DEERS, a spouse and a child.  However, 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 should not be granted relief based on unawareness of 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 (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.  The applicant's last day in service was 31 May 2011, which was not within 90 days after the program's implementation.

	e.  A Soldier must initially request the transfer through the DOD TEB online database.  The TEB database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the DVA.  The respective dependent must then submit the application for VA education benefits.  The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	f.  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 1 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.

5.  The advisory official also stated the applicant should not be granted relief unless he can provide evidence showing he attempted to transfer benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits.

6.  On 5 April 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

7.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible family member 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, 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 the maximum amount of time allowed by such policy or statute; or

	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.

8.  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 his record should be corrected to show he elected to transfer his Post-9/11 GI Bill educational benefits to his son.

2.  He was fully eligible to transfer his educational benefits under the TEB prior to retirement but did not do so.  The program was implemented in July 2009.  He retired on 31 May 2011.  Prior to retirement, while still on active duty, he did not apply for the transfer of educational benefits.

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 2 years after the program was implemented.  In addition, he received pre-separation counseling on the education benefits under the Post 9/11 GI Bill on 18 November 2010 and his last day of active service was 31 May 2011, over 6 months after the counseling.  

4.  There is no evidence in his record and the applicant has not provided any evidence that shows he attempted to transfer benefits prior to leaving military service and/or he was given false information about the rules of transferring education benefits.  There is no evidence he exercised due diligence; therefore, he is ineligible for 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)                                         AR20120003158





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ABCMR Record of Proceedings (cont)                                         AR20120003158



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