BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120005733 


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

2.  The applicant states he was not informed about being able to transfer his Post-9/11 GI Bill benefits to his spouse or children during his retirement briefing because the change did not come out until after he retired in May 2009.  He would like to transfer his benefits to his children so they can attend college.  He is not sure why 1 August 2009 was set as the cutoff date, but after serving 22 years in the Army that should count for something.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he honorably retired from Regular Army commissioned service on 31 May 2009.  He was credited with completing 21 years, 8 months, and 3 days of net active service.

2.  In an advisory opinion, dated 7 May 2012, the U.S. Army Human Resources Command Education Incentives Branch recommended no administrative relief for the applicant.  The Education Incentives Branch stated:

	a.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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.  Based on the following details, administrative relief was not recommended for the applicant because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.

	b.  A Soldier must currently be serving on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent (on or after 1 August 2009).  The applicant's last day in service was 31 May 2009.  He was not eligible to transfer his Post-9/11 GI Bill benefits.

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children.  The applicant had more than 21 years of service upon retirement, but he was not eligible to transfer benefits to either his spouse or children because the law required a Soldier to be in the service on or after 1 August 2009.

	d.  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.  The TEB online database shows he left military service before 1 August 2009; therefore, he was not eligible to participate in the TEB.

	e.  A Solider 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 been in the service on 1 August 2009, he would have incurred no additional service obligation, but he was not eligible because he left the service prior to 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 the applicant's record.  He received an honorable discharge.

	g.  Soldiers 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 (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 educational benefits.  The applicant's last day in the service was 31 May 2009, which was before the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the Department of Defense'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 educational benefits (VA Form 22-1990e) to request to use the benefits.  The applicant did not take the required steps to transfer benefits because the program was not yet available.

	i.  Changes to the number 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.  The TEB website shows no action was taken by the applicant to transfer any benefits.

3.  On 8 May 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.

4.  In his rebuttal, dated 14 May 2012, the applicant stated:

	a.  His last assignment in the Army was with Senior Leader Development as a colonel's assignment officer.  Around December 2008, they were told a new policy was forthcoming on the new Post-9/11 GI Bill and the transferability of benefits.  The initial guidance was to tell Soldiers they had to serve an additional 3 years after 2009 to enable them to use this benefit.  He and his family had planned to retire either 1 October or 1 November 2009, but they were offered a job and he had to retire effective 1 June 2009.  Later that summer he was told the policy changed.

	b.  He understands the policy and the eligibility criteria, but also understands exceptions can be granted.  Of the three policy criteria, they meet two, number of years of service and dependents enrolled in DEERS.  He is requesting a waiver ted for the cutoff date.  He and his family served the Army honorably for almost 22 years and missed the cutoff date to transfer his benefits by 2 months.  He would like to be able to transfer what benefits he has left to his children to give them the same opportunity he received.  He would hope the military would want what's best for its veterans.  When new updates and changes occur, such as the new change allowing transfer of educational benefits, he feels these changes should apply to veterans as well.

5.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to allow him to transfer his educational benefits to his eligible dependents under the TEB provision of the Post-9/11 GI Bill as an exception to policy.

2.  The evidence of record shows he was honorably retired on 31 May 2009 after completing more than 20 years of service.  In order to transfer his educational benefits he was required to have been a member of the service on or after 1 August 2009, which is a requirement established in the law.  As his last date in service was 31 May 2009, he was not eligible to transfer educational benefits to either his spouse or his children.  There is no evidence of record and he provided none to show he met one or more of the requirements established by law for transfer of educational benefits.

3.  The applicant is commended for completion of over 21 years of dedicated and honorable service; unfortunately, he left the service before 1 August 2009.  Therefore, this incentive was not available to him at the time of retirement and it is still not available to him unless Congress changes the law.

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 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)                                         AR20120005733



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ABCMR Record of Proceedings (cont)                                         AR20120005733



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