BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20120004291 


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 as an exception to policy the Transfer of Education Benefits (TEB) under the provisions of the Post-9/11 GI Bill to his son Dxxxxl.

2.  The applicant states he retired on 29 February 2012 and that since finding out about his son's ineligibility he has been bounced between the Department of Veterans Affairs (VA), the Defense Eligibility Enrollment Reporting System (DEERS), and the Education Center for several months in an effort to correct this error.  He tried to transfer the benefits to his son 2 days after his 23rd birthday.  He was assigned to the Pentagon at the time and he was told he would have to wait until the child's 24th birthday to transfer benefits.  He is now enrolled and ready to start school in Colorado.

3.  The applicant provides an exchange of email with officials at the U.S. Army Human Resources Command (HRC), Fort Knox, KY. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve warrant officer of the Army and executed an Oath of Office on 19 August 1994 with concurrent call to active duty.  He served in a variety of stateside or overseas assignments and he attained the rank of chief warrant officer four (CW4).  

2.  On 29 February 2012, he was retired by reason of sufficient service for retirement and placed on the Retired List in the rank of CW4 on 1 March 2012.  He was credited with over 27 years of creditable active service.

3.  In the processing of this case, on 9 April 2012, an advisory opinion was obtained from HRC, Education and Incentives Branch.  The official stated that Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, section 3020 of 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 advisory official recommended disapproval of the applicant's request because the dependent child, Dxxxxl, to whom he would like to transfer education benefits did not maintain DEERS extended eligibility status as a full-time student at an Institution of Higher Learning (IHL) during ages 21-22.  

	a.  In his statement and email, the applicant references a possible law change and contacts with various offices, including the HRC Education Incentives Branch.  He does not provide documentation for his contacts with other offices which he references (e.g. the VA, DEERS, Pentagon Education Center, and Fort Myer Education Center).  He provides email correspondence, dated in February 2012, in which he was informed that no change occurred in the Post 9/11 GI Bill law affecting a dependent child’s age eligibility.  Also, this office provided the applicant information regarding the requirement to transfer education benefits prior to a dependent child’s 21st birthday (if not in extended eligibility due to no full-time enrollment at an IHL) or the 23rd birthday (if in extended eligibility status due to full-time enrollment at an IHL).  This email correspondence did not mention the applicant's dependent child, Dxxxxl, had not been in extended eligibility status. 

	b.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to dependents (on or after 
1 August 2009).  The applicant's last day in service was 29 February 2012.  He would have been eligible to transfer the benefit to two of his four dependents. 

	c.  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 more than 27 years of service upon retirement; therefore, he was eligible to transfer to two of his four dependents.

	d.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent 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 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 Transfer of Education (TEB) online database shows the applicant had four dependents enrolled in DEERS as of 29 February 2012, his last day in service; however, two dependents were ineligible to receive benefits in DEERS.  He was eligible to transfer to the following dependents:  Axxe (spouse), and Cxxxxxxy (child).   He had two ineligible dependents to whom he could not transfer benefits:  Dxxxxl (child) was ineligible due to the dependent child reaching age 21 (not enrolled as a full-time IHL student); and Cxxxxxy (child) was ineligible due to no benefits transferred to her prior to marriage and removal from DEERS eligibility effective 20 February 2011.  If Dxxxxl (child) would have been enrolled in DEERS as a full-time IHL student during ages 21 and 22 his eligibility would have been extended in DEERS and he would have been eligible to receive a transfer of benefits in the TEB online database up to his 23rd birthday (14 April 2011).  No documentation exists in DEERS nor provided by the applicant stating Dxxxxl (child) was enrolled as a full-time IHL student prior to his 21st birthday or 23rd birthday.  Therefore, the transfer of education benefits was never available to Dxxxxl (child) because he did not have extended eligibility status in DEERS after the TEB became effective 1 August 2009.

	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 transferred his benefits to his two eligible dependents prior to leaving military service he would have incurred an additional service obligation of zero years because he had more than 20 years of service as of 1 August 2009.   

	f.  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.  

	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 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.  The applicant's last day in the service was 29 February 2012 which was not within 90 days after the program’s implementation.  

	h.  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 dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to request to use the benefits.  The applicant did not transfer education benefits to Dxxxxl (child); therefore, any application to VA will be disapproved. 

	i.  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.  The TEB website shows the applicant did not attempt to transfer to Dxxxxl (child).  This benefit was not available to Dxxxxl because he was not enrolled as a full-time IHL student during ages 21-22.   

4.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

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 an eligible 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.

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 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 served on active duty as a warrant officer from 19 August 1994 through 29 February 2012.  He had four dependents.  A Soldier may only transfer the Post 9/11 MGIB educational benefits to eligible dependents.  To be considered an eligible dependent 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 upon 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).  Once the benefits are transferred children may use the benefit up to the age of 26.  

2.  The TEB online database shows Dxxxxl was ineligible due to reaching age 21 (not enrolled as a full-time IHL student). 

3.  If Dxxxxx would have been enrolled in DEERS as a full-time IHL student during ages 21 and 22, his eligibility would have been extended in DEERS and he would have been eligible to receive a transfer of benefits in the TEB online database up to his 23rd birthday (14 April 2011).  No documentation exists in DEERS nor provided by the applicant stating Dxxxxl was enrolled as a full-time IHL student prior to his 21st birthday or 23rd birthday.  Therefore, the transfer of education benefits was never available to Dxxxxl.

4.  In view of the foregoing, there is no 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)                                         AR20120004291



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ABCMR Record of Proceedings (cont)                                         AR20120004291



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