IN THE CASE OF:	  

		BOARD DATE:  15 November 2012

		DOCKET NUMBER:  AR20120006399 


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 approval of transfer of educational benefits (TEB) under the Post-9/11 GI Bill to her family members.

2.  She states she believes her request is justified based on:

* her attempt to transfer TEB to her daughter in 2009, prior to her retirement from the U.S. Army Reserve (USAR)
* the Army failed to inform her that she needed to transfer TEB prior to her retirement
* the lack of information posted on the public Post-9/11 GI Bill website
* her attempt to transfer TEB after she retired was denied because she was retired
* her Representative in Congress attempted to remedy the situation, but the Department of the Army denied the request a second time

3.  She provides:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 14 February 2005 and 29 November 2008
* Orders 10-077-0002, issued by Headquarters, 88th Regional Support Command, Fort McCoy, WI, dated 18 March 2010
* online TEB request printed on 23 August 2009
* online Beneficiary Web Enrollment printed on 23 August 2009


* email from U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 13 January 2011
* two self-authored letters to her Representative in Congress

CONSIDERATION OF EVIDENCE:

1.  After completing 22 years, 5 months, and 19 days of USAR service, to include being ordered to active duty twice in support of Operation Iraqi Freedom (OIF), the applicant was assigned to the Retired Reserve in the rank/grade of lieutenant colonel (LTC)/O-5.

2.  Orders Number 10-077-00002, dated 18 March 2010, show she was assigned to the Retired Reserve on 1 June 2010.

3.  She submitted two pages of her Beneficiary Web Enrollment, dated 10 July 2010, that list her spouse and one child as her family members.  However, her TEB request lists her status as "Request Rejected - Invalid Entry."

4.  She submitted an email from a representative of the Strategic Resources Incorporated, HRC, dated 13 January 2001, that stated:

	a.  her TEB was disapproved because her interactive Personnel Electronic Records Management System (iPERMS) file showed she retired on 1 June 2010.

	b.  the Department of Defense (DoD) and Army policy requires a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits.

	c.  these policies were based on requirements established in law, Public Law 110-252, section 3319(b), that requires one be a member of the Armed Forces.

	d.  the Army does not have the legal authority to grant an exception to policy allowing those who retired or were otherwise separated to transfer Post-9/11 GI Bill benefits.

5.  The applicant submitted copies of two letters written to her Representative in Congress requesting his assistance in fixing the DoD/Army policy for transferring Post-9/11 GI Bill benefits and restoring her eligibility to transfer her benefits to her daughter.  She reiterated her claim that she was not aware of the application process and requirement to transfer her entitlement prior to retirement.  She did not submit her Representative's acknowledgement or response to her request.


6.  During the processing of this case, on 17 May 2012, an advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch.  The advisory official recommended denying administrative relief to the applicant.  The official stated:

	a.  Public Law 110-252 established the legal limits on the transferability of unused Post-9/11 GI Bill benefits and Public Law 110-252, section 3020, limited the 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 or after 
1 August 2009.

	b.  based on guidance, she also was not recommended for administrative relief because she did not provide evidence showing she attempted to transfer a valid request prior to leaving military service and/or she was given false information by a reliable source about the rules of transferring education benefits. 

	c.  the TEB document provided in this case, dated 23 August 2009, shows an invalid entry due to the awarding of "0" months to family members.  Since the applicant was still in the Selected Reserve until 31 May 2010, she was eligible to submit a valid request during that timeframe.  However, she did not submit a request while she was in the Selected Reserve.  Due to her voluntary transfer from the Selected Reserve to the Retired Reserve, any subsequent request was rejected as noted in the HRC email, dated 13 January 2011.

7.  The advisory official further stated:

	a.  a Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer TEB to his or her family members (on or after       1 August 2009).  The applicant's last day in service was 31 May 2010.  She would have been eligible to transfer the benefit if she transferred before she left service.

	b.  a Soldier must have at least 6 years of eligible service in order to transfer TEB to a spouse and at least ten years of eligible service to transfer TEB to eligible children.  The applicant had more than 22 years of service upon her transfer to the Retired Reserve, so she was eligible to transfer to either spouse or children (if she completed the request before leaving military service).

	c.  a Soldier may only transfer benefits to eligible family members.  To be considered an eligible family member, the spouse or child(ren) must be enrolled in the 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 benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database shows the applicant had one eligible family member enrolled in DEERS.  She was eligible to transfer to her child.  She did not complete the requirements in the TEB online database because she claims she was not aware of the requirement to transfer 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 the applicant had transferred TEB prior to leaving military service, she would have incurred no additional service obligation, because she had more than 20 years of service as of 1 August 2009.

	e.  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 of the program (first 90 days).  The Army, 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 May 2010, which was not within 90 days after the program's implementation.

	f.  a Soldier must initially request to transfer benefits on the DoD 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 to the VA for access.  The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e) to request to use the benefits.  The applicant claims she was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	g.  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 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

	h.  the VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.  No 


evidence was provided that her family member made a previous claim to the VA.  If the applicant is granted relief the beginning date for her family members to use the transferred benefits will be the granted relief unless previous specific claims were submitted to the VA (as verified by the VA upon approval).

8.  On 21 May 2012, she was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

9.  DoD established the criteria for the TEB provision of the Post-9/11 GI Bill on 22 June 2009.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  Therefore, this information would have been available to the applicant prior to the effective date of her retirement.

10.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

11.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her family members.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;
	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 - no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 - 1 year of additional service required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 - 2 years of additional service required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 - 3 years of additional service required; and

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that since the Army failed to inform her she needed to transfer TEB prior to retirement she should be given an exception to policy and allowed to transfer TEB to her family members under the Post-9/11 GI Bill was found to be without merit.

2.  Significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program.  The applicant retired on 31 May 2010, which was well after the implementation of the program.  

3.  DoD established the criteria for the TEB provision of the Post-9/11 GI Bill on 22 June 2009.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  Therefore, this information would have been available to the applicant prior to the effective date of her retirement.

4.  The law requires a member to be in an active or Selected Reserve status at the time he or she requests the transfer.  Those who retired on or after 1 August 2009, by law, were eligible to transfer unused Post-9/11 GI Bill benefits providing he or she requested to transfer TEB prior to the day of retirement or transfer to the Retired Reserve.  Evidence of record shows the applicant retired on 31 May 2010.  However, there is no evidence to show she attempted to transfer her education benefits prior to the date of her transfer to the Retired Reserve.  

5.  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)                                         AR20120006399



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006399



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1