IN THE CASE OF:	  

		BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120006296 


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 children.

2.  The applicant states he earned the eligibility for the Post-9/11 GI Bill,  but missed the availability to transfer the benefit to his children by 1 day.  His expiration of term of service (ETS) date of 31 July 2009 was just 1 day prior to the 1 August 2009 availability to transfer eligibility date.  If he had known the circumstances, he would have delayed his ETS by 1 day.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and he executed an oath of office on 5 May 1989.  He served in staff and leadership positions and he attained the rank/grade of major (MAJ)/O-4 on 19 August 2003. 

2.  Having had prior active duty service, he entered active duty in an Active Guard Reserve (AGR) status on 25 July 2004.

3.  Orders Number C-06-911034, dated 9 June 2009, issued by the U.S. Army Human Resources Command (HRC), attached him to Fort Leavenworth, KS, with a report date of 31 July 2009, for separation processing from the USAR AGR program effective 31 July 2009.

4.  On 31 July 2009, he was honorably discharged from active duty in the rank of MAJ.  He completed 5 years and 6 days of net active service during this period of service; had 5 years, 2 months, and 27 days of prior active service; and 9 years, 11 months, and 23 days of prior Reserve service. 

5.  In the processing of this case, an advisory opinion was received from the Chief, Education Incentives Branch, HRC, on 17 May 2012.  The advisory official recommended disapproval of the applicant's request and stated that 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.  

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her family members (on or after 1 August 2009).  The applicant's last day in military service was 31 July 2009.  He is not eligible to transfer his post-9/11 benefits.

	b.  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 to eligible children.  The applicant in this case had 15 years of service upon his separation.  He did not retire from the U.S. Army.  He was not eligible to transfer to either his spouse or his children because the law requires Soldiers to be in the service on or about 1 August 2009. 

	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 the Defense Enrollment Eligibility 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 benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database shows the applicant had four eligible family members enrolled in DEERS.  If he had met all the prerequisites (including being a member of the Selected Reserve on or after 1 August 2009), he would have been eligible to transfer the benefit to his spouse or children.  He could not complete the requirements in the TEB online database before he left the service because he was not in the service on or after 1 August 2009; this incentive was not available to him because this program was not yet implemented.
	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 the applicant had been in the service on or after 1 August 2009 he would have incurred an additional service obligation of 4 years.  But, he was not eligible because he left the service prior to 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 the applicant's 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 he or she left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), 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 July 2009 which was not within 90 days after the program's implementation.

	g.  A Soldier must initially request to transfer benefits on the DOD 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 the benefits because the program was not yet available.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

6.  On 21 May 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, DOD established the criteria for eligibility and transfer of unused educational 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.

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.

9.  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.  The applicant requests transfer of his Post-9/11 GI Bill educational benefits to his children under TEB.  However, the program was not implemented until July 2009 and the law required a person to be on active duty or serving as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible for the program.  He was discharged from active duty and the USAR on 31 July 2009.  

2.  Contrary to his belief that if his ETS date was one day later, he would have been eligible to transfer the benefits, 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 been in the service on or after     1 August 2009 he would have incurred an additional service obligation of 4 years.  
3.  As such, he was ineligible to transfer his educational benefits to his children; therefore, there is no basis for granting his 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)                                         AR20120006296





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ABCMR Record of Proceedings (cont)                                         AR20120006296



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