BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120006263 


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 an exception to policy to transfer educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his family member.

2.  The applicant states:

* he was not informed during the retirement process of the requirement to transfer the benefit while still in the service
* his understanding was that he could request the transfer at any time, even after retirement

3.  The applicant did not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army, the applicant was appointed as a Regular Army Medical Services Corps commissioned officer and executed an oath of office on 18 May 1992. 

2.  He served in a variety of stateside or overseas assignments and he attained the rank of lieutenant colonel (LTC).

3.  On 31 October 2011, he was retired by reason of sufficient service for retirement and he was placed on the Retired List in his retired rank of LTC on     1 November 2011.  He completed 22 years, 5 months, and 13 days of creditable active service.

4.  On 13 April 2012, an advisory opinion was obtained from the Office of the Chief, Education Incentive Branch, U.S. Army Human Resources Command, Fort Knox, KY.  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, § 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 on or after 1 August 2009.  Based on the details below, the official did not recommend administrative relief for the applicant because he did not provide evidence showing he attempted to transfer the benefit prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits.  The advisory official stated:

	a.  A Soldier must be currently on Active Duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  His last day in service was 31 October 2011.  He would have been eligible to transfer the benefit if he transferred before he left service.

	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.  He had more than 22 years of service upon his retirement, so he was eligible to transfer to either his spouse or children (if he completed the request before leaving military service).

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child must be enrolled in 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.  The TEB online database shows he had 3 eligible family members enrolled in DEERS.  He was eligible to transfer to the following family members:  Poxxx (spouse), Jamxx (child), Jacxxx (child), Amaxxx (child), Jonxx (child), and Lyxx (child).  He did not complete the requirements in the TEB online database because he claims he was not aware of the requirements to transfer the benefit prior to leaving service.

	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.  If he had transferred his benefits prior to leaving military service he would not have incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.

	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 his record.  He received an honorable discharge.

	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, DOD, and 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.  His last day in the service was 31 October 2011, which was not within 90 days after the program’s implementation.

	g.  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 family member must then submit an application for VA education benefits, VA Form
22-1990e, to request to use the benefits.  He claims he was unaware of the requirements; so, none of the required steps to transfer the benefits were taken. 

	h.  Changes to the amount of months allocated to family members can be made at anytime, to include once the service member leaves 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 no action was taken by him to transfer any benefits.

5.  The applicant provided a rebuttal wherein he stated:

* most of the items in the advisory opinion are not in dispute
* the item in dispute is related to unawareness of the program
* the DOD and VA have an implied mission to inform members that the procedural requirements are in place
* his briefing at Fort Sam Houston did not cover a statutory timeline to transfer the benefits
* the interpretation placed an undue burden on him to personally research the criteria for benefits when he is focused on his active service
* he deserves a better fate than that for his Government to deny him benefits simply because he was unaware of the law and the Government made sub-optimal attempts to inform him of the law
* given that his eligibility is not in question and given the short period between leaving active duty and requesting the transfer, his request is reasonable

6.  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 duty or 20 qualifying years of reserve service.

7.  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.

8.  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 so 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.  There is insufficient evidence that shows the applicant submitted a request to transfer the education benefits to his family member(s) while in an active status.  HRC officials went to an effort to confirm if and when the applicant submitted a request to transfer the benefits on the TEB website.  However, no evidence of a submission was found. 

2.  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 retired over two years after the program was implemented.

3.  The applicant's service and his sincerity are not in question.  However, as the applicant had been on active duty since the program was implemented in August 2009, and over 2 years (he retired on 31 October 2011) after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

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)                                         AR20120006263



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006263



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1