IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120006428 


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, correction of his records to show he elected to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states the administration of the program process is confusing, disjointed and is in a constant state of change.  On several occasions he was given not only contradictory, but incomplete and in some instances wrong information.  The personnel at the education centers were not equipped to answer questions concerning the process of what law and regulations governed the administration of the program.

	a.  He says if he was stationed on another service’s installation (MacDill Air Force Base), as he was when the program was first approved, it is even harder to get answers about benefits relating to the Army.  The Army did not follow its own guidance in regard to implementation of the program.  He was never notified of the program or counseled as required regarding its requirements.   Currently the program is being administered as a force retention tool; not what was intended when the law was written.

	b.  He states even after 20 years of service, an active duty service obligation (ADSO) of 2 years is required to be eligible to transfer benefits to dependents.  The Department of Veterans Affairs (DVA) does not have any say as to who can and cannot transfer benefits.  This only added to the confusion as it was the DVA who initially told him he was eligible to transfer benefits after 20 years of service.  The decisions are made by the Incentives Branch at U.S. Army Human Resources Command (HRC).    

	c.  He offers that if the TEB is to be based on an ADSO, that information should have been provided by the Warrant Officer division when the request for retirement was received.  By doing so, the service members would have the opportunity to make an informed decision.  No education benefit counseling took place or was being offered at the time he submitted his request to retire.  As presently constructed, the program has no benefits for "veterans" as intended and only for those on active duty.  

3.  The applicant provides:

* Letter, dated 9 February 2012, from a Member of Congress
* DD Form 93 (Record of Emergency Data)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

CONSIDERATION OF EVIDENCE:

1.  After completing over 20 years of creditable active service, the applicant retired from active duty on 31 July 2011 in the rank of chief warrant officer four.

2.  During the processing of this case an advisory opinion was obtained from the Chief, Education and Incentives Branch, HRC, Fort Knox, KY, who states, in summary:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  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 on or after 1 August 2009.

	b.  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 dependent (on or after 1 August 2009).  The applicant's last day in service was 31 July 2011.  He would have been eligible to transfer the benefits if he transferred them before he left the service.  Regarding the applicant's statement about education counseling prior to his retirement, the following information is noted:  

		(1) He submitted a request for retirement on 9 August 2010 and was approved for retirement on 20 October 2010.  His effective date for retirement was 1 August 2011.

		(2) To have all information prior to submitting a request for retirement, the Department of the Army has available education counselors to assist Soldiers upon the Soldier's request.

		(3) Since his retirement was voluntary and not mandated by the Department of the Army, he could have requested education counseling prior to his decision to submit a request for retirement.  If he had done so, he would have had all pertinent information available upon which to make prudent decisions regarding the timeframe in which to submit a TEB request and/or a retirement request.

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse or at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 21 years of service upon his retirement, so he was eligible to transfer benefits to either his spouse or children (if he completed the request before leaving military service and completed the additional service obligation).

	d.  A Soldier may only transfer benefits to eligible dependents.  He had two eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.  He did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer benefits prior to leaving service.

	e.  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 transferred his benefits prior to leaving military service he would have incurred an additional service obligation of 1 year because he had more than 19 years of service as of 1 August 2009.

	f.  A Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant's record.  He received an honorable discharge.

	g.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left military service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), and DVA 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 military service was 31 July 2011 which was not within 90 days after the program's implementation.

	h.  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 for DVA access.  The respective dependent must then submit an application for VA educational benefits to request to use the benefits.  The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	i.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a Soldier 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.

	j.  The DVA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the DVA.  No evidence was provided by the applicant to show his dependents made a previous claim to the DVA.  If the applicant is granted relief, the beginning date for his dependents to use the transferred benefits will be the date relief is granted unless previous specific claims were submitted to the DVA (verified by DVA upon approval).

3.  The advisory official does not recommend administrative relief for the applicant because he did not provide evidence showing he attempted to transfer benefits prior to leaving military service and/or he was given false information by a reliable source about the rules for transferring educational benefits.

4.  On 14 May 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 29 May 2012, he responded.  

	a.  He stated notwithstanding the position taken by HRC, he did seek advice on multiple occasions as to his options on the available education benefits.  The policy went into effect in August 2009 while he was assigned to MacDill Air Force Base.  There was no notification at that time by the Army element concerning a change in benefits.  It was not until after he arrived at Fort Huachuca, AZ, did he learn of the new benefits; however, it was after he began his retirement process.

	b.  He said when he first went to the education office, he was told the benefit would have to be transferred while on active duty and you had to have at least 
20 years of service.  The VA counselor also stated the only requirement was to transfer the benefit before leaving active duty and have 20 years of service.  He then went back to the post education office to find out the procedures to do the transfer.  The education office did not have specific guidance on hand other than what had been given to him previously.  The office called the Incentives Branch at HRC for guidance.  At that time he learned of the ADSO requirement and was told he could not apply for transfer.

	c.  He offered he could not ask for relief within the first 90 days because he did not know of the program at that time.  Contrary to the assertion from HRC, this program was not well publicized when it was first approved.  As for "requesting" education counseling he was under the impression that by going in and seeking information and advice that was what he was doing.  He did not know he had to specifically request it.  The governing law states each service member was to be contacted concerning the new benefit and formally counseled and that counseling would be placed in their file by the education center upon arrival at a new duty station.  None of these things happened. 

	d.  He also said the individuals in the education centers had a gross lack of knowledge of the program.  HRC's position is based on what was supposed to happen with the implementation of the program, but it did not occur.  There are still big gaps in the information being provided to service members.  He did not think he would have to keep track of dates, times, places and names to prove he was given inaccurate information.

	e.  He stated HRC's position concludes he did not follow procedure/proper timeline to be eligible for the benefit transfer.  It is his position HRC did not follow the procedures that were mandated by law and did not have procedures in place to insure full and proper implementation that would allow the maximum number of service members to take advantage of the benefit.

5.  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 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.

6.  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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.
 
DISCUSSION AND CONCLUSIONS:

1. The applicant contends he was never notified of the program.  However, the Army, DOD, and DVA 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.  

2.  He also contends he never received education counseling.  However, the advisory opinion points out since his retirement was voluntary and not mandated by the Department of the Army, he could have requested education counseling prior to his decision to submit a request for retirement.  He provides no evidence to show the personnel at the education centers gave him incorrect information.

3.  His remaining contentions were carefully considered.  However, there is no evidence of record and he provided no evidence which shows he transferred his Post 9/11 GI Bill benefits to his dependents prior to retirement on 31 July 2011.  Regrettably, there is no basis for granting the 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)                                         AR20120006428



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ABCMR Record of Proceedings (cont)                                         AR20120006428



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