BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120006336 


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 correction of his records to show his eligible family members were listed in the official Transfer of Education Benefits (TEB) online database and that he be allowed to transfer his GI Bill educational benefits to his eligible family members under the Post 9/11 GI Bill transferability option.

2.  The applicant states he was on active duty in the U.S. Army on and after
1 August 2009 and he met the criteria for the Post 9/11 GI Bill transferability option.  At the time, his family members were enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and eligible for the TEB.

   a.  He left active service within the first 90 days of implementation of the Post 9/11 GI Bill program.  During out-processing, he wasn't briefed on the program nor asked about transferring his educational benefits to his dependents.  He retired from active duty on 31 August 2009.

   b.  Shortly after retiring from active duty, he learned that he was eligible to transfer his educational benefits.  He contacted TEB officials and was told that he was not eligible to transfer his benefits to his spouse because she was not in DEERS, so he abandoned his efforts.

   c.  He recently completed his Master's Degree and a Department of Veterans Affairs (VA) counselor discovered that he was being paid educational benefits based on being in an active duty status rather than a retired status.  The VA reimbursed him for the monetary difference and the counselor advised him that he should pursue transferring his remaining educational benefits under the Post 9/11 GI Bill.

3.  The applicant provides, in support of his request, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the U.S. Army Reserve from 28 May 1986 through 21 November 1988.  He also had prior honorable active duty enlisted service in the Regular Army from 22 November 1988 through 2 August 1996 and from 8 April 1997 through 20 May 2003.

2.  He was appointed as a Reserve warrant officer in the U.S. Army and entered active duty on 21 May 2003.  He was promoted to chief warrant officer two (CW2)/pay grade W-2 on 21 May 2005.

3.  U.S. Army Intelligence and Security Command, U.S. Army Field Support Center, Fort George G. Meade, Maryland, Orders 091-04, dated 1 April 2009, show the applicant was assigned to the U.S. Army Element Defense Attaché System, Defense Intelligence Agency, Washington, DC, with duty U.S. Defense Attaché Office, Nicaragua.  The orders reassigned him to the U.S. Army Transition Center, Fort Belvoir Virginia, with a reporting date of 1 June 2009, for separation processing.

4.  A DD Form 214 shows the applicant was honorably retired from active duty on 31 August 2009.  He completed 6 years, 3 months, and 10 days of net active service this period; 16 years, 1 month, and 2 days of total prior active service; and 22 years, 4 months, and 12 days of total active service.

5.  There is no evidence that the applicant's dependents made a previous claim to the VA for educational benefits.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, Kentucky.

	a.  The advisory official recommends administrative relief for the applicant.

   b.  The advisory official notes the applicant was eligible to transfer benefits under the Post 9/11 GI Bill transferability program. 
   
    	(1)  He was on active duty on 1 August 2009 and his last day of active duty service was 31 August 2009.
   
    	(2)  He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children.
   
    	(3)  He was eligible to transfer his educational benefits to the following family members who were enrolled in DEERS:  Erin E. K____ (spouse), Amber N. K____ (child), and Summer S. Y____ (child), all of whom were enrolled in DEERS.

	 	(4)  He was eligible to transfer educational benefits to them, if he completed the request before leaving military service; however, he did not.

	c.  The advisory official notes the Department of the Army, Department of Defense, and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post 9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009.
   
    	(1)  The applicant began an extended period of absence on or about
1 June 2009, which was prior to his retirement date (of 31 August 2009) and claims he was not aware of the requirement to transfer his educational benefits prior to leaving service.

    	(2)  The advisory official adds that, although significant measures were taken to disseminate information, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.

   d.  The VA is restricted to pay for educational benefits by compensating no more than one (1) retroactive year from the date a claim is received by the VA.  

7.  On 14 May 2012, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.

8.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended
Title 10 (Armed Forces), U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the armed forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

   b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows:
   
		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.

	c.  To satisfy this legally imposed constraint, a child must be an eligible family member at the time of transfer.  To be considered an eligible family member, a child must be enrolled in DEERS and eligible for DEERS benefits.

		(1)  Children lose eligible family member status upon turning age 21, or at marriage;

		(2)  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, as verified by DEERS; and

		(3)  Family member children can use transferred benefits up to age 26.

	d.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post 9/11 GI Bill Transferability Program prior to retirement.

2.  He was eligible to transfer his educational benefits to the following family members who were enrolled in DEERS:  Erin E. K____ (spouse), Amber N. K____ (child), and Summer S. Y____ (child), all of whom were enrolled in DEERS.

3.  The advisory opinion points out many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer Post 9/11 benefits prior to leaving military service.

4.  The applicant began an extended period of absence on or about 1 June 2009, which was within 90 days of the program's implementation date, and he retired from active duty on 31 August 2009.  Thus, he may not have been aware of the requirement to transfer his benefits prior to leaving military service.  

5.  Therefore, it would be appropriate to correct his military records to show he elected to transfer benefits under the Post 9/11 GI Bill Transferability Program to his eligible dependents prior to his retirement date.

BOARD VOTE:

___x_____  ___x_____  ___x_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his military records to show he filed his application and the Army 


approved his request to transfer Post 9/11 GI Bill benefits to his family members prior to his retirement, provided all other program eligibility criteria are met. 



      _______ _  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)                                         AR20120006336



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ABCMR Record of Proceedings (cont)                                         AR20120006336



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