IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120006809 


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 dependents/spouse.

2.  The applicant states he was not aware the benefit had to be transferred while he was on active duty.

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

CONSIDERATION OF EVIDENCE:

1.  On 1 February 2011, the applicant was honorably retired after having served 20 year and 10 months of creditable service.  He held the military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while on active duty was staff sergeant/E-6.

2.  He underwent a pre-separation briefing at Fort Jackson, SC, on 30 March 2010.  He checked the "Yes" block in item 13a (Education/Training – Education Benefits (MGIB)) of his DD Form 2648 (Pre-separation Counseling Checklist) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.


3.  During the processing of this case, an advisory opinion was obtained from the Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, on 3 May 2012.  The Human Resources Command recommended denial of the applicant's request unless he could show he attempted to transfer [benefits] prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, Public Law 110-252, section 3020, 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.  

   a.  A Soldier must currently be 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 military service was 31 January 2011.  He would have been eligible to transfer the benefits if he had done so before he left military service.

	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 benefits to eligible children.  The applicant had more than 20 years of service upon his retirement, so he was eligible to transfer benefits to either his spouse or children if he had completed the request before leaving military service.

	c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  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 (verified by DEERS); the child will lose eligibility status upon less than full-time status or graduation.  Wards of State are not eligible for the benefit.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database shows the applicant had seven eligible dependents enrolled in DEERS as of 31 January 2011, his last day in military service.  He was eligible to transfer benefits to the following dependents:  Regina (spouse); Desiree (child); Melissa (child); Anastasia (child); Alexander (stepchild); William (stepchild); and John (stepchild).  Sara (stepchild) was not eligible for the transferred benefit because she was over the age of 21.  The applicant did not complete the requirements in the TEB online database because he claims he 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 his benefits prior to leaving military service he would have incurred a 2-year additional service obligation because he had more 18 years, 6 months, and 11 days of service which was eligible for Post 9/11 GI Bill service as of 1 August 2009.  This service obligation would start on the day he transferred [benefits].  If he transferred [benefits] on his last day of service, he would have been required to stay on active duty until 30 January 2013.

	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 was honorably discharged.

	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, Department of Defense (DOD), and the 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 January 2011 which was not within 90 days after the program's implementation.

	g.  A Soldier must initially request to transfer benefits on the Department of Defense'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 dependent must then submit an application for VA educational benefits, VA Form 22-1990e, 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.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave 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.

	i.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.  No evidence was provided by the applicant that his dependents made a previous claim to VA.  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 VA (verified by VA upon approval).

4.  The applicant was provided with a copy of this advisory opinion but he did not respond.

5.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible member is 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 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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

7.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his educational benefits under the TEB provision prior to retirement, but he did not do so.  The program was implemented in July 2009 and he retired on 1 February 2011.  Prior to retirement, he did not apply for the transfer of benefits while on active duty.

2.  DOD, the VA, and the Army conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent:

* be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action)
* have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of the request, unless retirement eligible

3.  In view of the above, there is no basis to grant 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)                                         AR20120006809





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006809



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1