IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120005622 


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, in effect, an exception to policy to back-date her Transfer of Education Benefits (TEB) under the provisions of the Post-9/11 GI Bill, to show an effective date of 22 August 2011 vice 19 January 2012.

2.  She states she tried to transfer her benefits to her daughter in April 2011 at the mobilization station in Fort Bliss, TX prior to deploying to Afghanistan, but she was told she needed 4 years remaining on her enlistment contract.  She states she only had 1 year and 5 months remaining and she was told she was not eligible to reenlist until 1 year prior to her expiration term of service (ETS) date.  She also states that after her daughter's first semester they were denied education loans and her daughter was asked to leave the school.  She continues by citing her accomplishments in the Reserve and indicates that she intends to serve 20 years or more.

3.  She provides the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 February 2012
* Department of Veteran Affairs (VA) Certificate of Eligibility, dated 
23 February 2012
* Philadelphia University letter, dated 24 February 2012




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR), on 17 November 1997, and remained in the USAR through a series of extensions and/ or reenlistments.  She is currently serving in the rank/grade of staff sergeant/E-6.

2.  Her Army Military Human Resource Record shows that on 26 December 2003, she reenlisted for 3 years.  Her record is void of any other documents that show she reenlisted or extended her enlistment after 26 December 2003.

3.  A VA Certificate of Eligibility, dated 23 February 2012, shows the applicant was approved to transfer 36 months of education benefits to her daughter under the Post 9/11 GI Bill.  The beginning date of the transfer is listed as 19 January 2012.

4.  A letter from Philadelphia University, dated 24 February 2012, shows the applicant's daughter had a balance due of $6,598.00.

5.  An advisory opinion was obtained from the Office of the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 9 July 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, 
Public Law 110-252, section 3020, 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 since she did not provide documentation proving she attempted to transfer her benefits prior to 19 January 2012.  Additionally the advisory opinion states:

	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 dependents (on or after
1 August 2009).  The applicant is currently serving in the U.S. Army Selected Reserve.  She transferred her Post 9/11 GI Bill benefits on 19 January 2012.

   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 nearly 12 years of service as of the program’s implementation date of 1 August 2009; therefore, she was eligible to transfer to either her spouse or her 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 two eligible dependents enrolled in DEERS:  spouse and one child. She transferred benefits to her dependent on 19 January 2012. 

   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.  She transferred education benefits via the TEB online database on 19 January 2012; therefore, she incurred a Reserve Duty Service Obligation and a TEB Obligation End Date of 18 January 2016.  
   
   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 the applicant's record.  She is currently in the Selected Reserve. 
   
   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 (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 has been in the U.S. Army beyond the implementation phase; therefore, she 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 DOD'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 VA access.  The respective dependent must then submit an application for VA education benefits, VA-Form 22-1990e, to use the benefits.  

   h.  Changes to the number 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.  The TEB website shows action was taken by the applicant to transfer benefits on 19 January 2012.

	i.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received.  The applicant provided no evidence to show that her dependents made a previous claim to the VA.

6.  The applicant was provided a copy of the advisory opinion and provided an opportunity to respond; but she did not respond during the time allowed.

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 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 service 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 service pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, 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 requests, in effect, an exception to policy to back-date her Transfer of Education Benefits (TEB) under the provisions of the Post-9/11 GI Bill, to show an effective date of 22 August 2011 vice 19 January 2012.  However, there is no documentation available and she did not provide any to show she attempted to transfer her Post 9/11 GI benefits prior to 19 January 2012. 
2.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  The law requires a member to have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election.  Since she was not in her reenlistment window and did not have the 4 additional years as specified above, she was not eligible to transfer her education benefits to her family member under the TEB provision of the Post-9/11 GI Bill.

3.  Further, there are no provisions under the TEB that allows for the retroactive approval of an application based on an earlier period of indebtedness.  In view of the above, her request should be denied.

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)                                         AR20120005622



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005622



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1