BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20120006833


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, an exception to policy 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:

* he was neither informed nor aware that the transfer of benefits had to be made in 2009
* he did apply and received an approval letter in August 2009
* the only information put out at the time by his unit was that he needed to apply and get approval first – the benefit could be transferred later
* he tried to transfer his benefits through the Defense Finance and Accounting Service (DFAS), but wasn't able to do so
* the Department of Veterans Affairs (VA) instructed him to apply for relief through the Army Board for Correction of Military Records (ABCMR)
* the largest issue with Reserve component units is that information doesn't get passed down like it should
* he understands the TEB was being used as a retention tool; however, after 30 years of service, he has met his retention part    

3.  The applicant provides a letter from the Regional Office of the VA, St. Louis, MO, dated 20 August 2009.  



CONSIDERATION OF EVIDENCE:

1.  On 30 June 1976, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  On 29 June 1979, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).

2.  He served in a variety of assignments in the USAR, through multiple periods of enlistment or extension, and attained the rank/grade of master sergeant (MSG)/E-8.

3.  Orders 10-194-00036, issued by Headquarters, 88th Regional Support Command, Fort McCoy, WI, dated 13 July 2010, released him from his current assignment at the completion of 20 or more years of qualifying service for retired pay at age 60, and reassigned him the USAR Control Group (Retired Reserve), effective 6 August 2010.

4.  His record does not contain any documentation that indicates he transferred, or attempted to transfer, his education benefits under the TEB provision of the Post-9/11 GI Bill, prior to his date of transfer to the Retired Reserve.

5.  In the processing of this case, on 14 June 2012, an advisory opinion was obtained from the Chief of the Education Incentives Branch at U.S. Army Human Resources Command (HRC), Fort Knox, KY.  The advisory official did not recommend administrative relief because the applicant did not provide evidence showing he attempted to transfer his education benefit prior to leaving military service, and/or he was given false information by a reliable source about the rules of transferring education benefits.

6.  On 26 June 2012, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal; however, he did not respond.

7.  He provides a letter from the Regional Office of the VA, St. Louis, MO, dated 20 August 2009, which approves his entitlement to educational benefits under the Post-9/11 GI Bill.  

8.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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 meets other criteria. 

9.  Section 3020 Public Law 110-252, 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.  

	a.  A Soldier must be on Active Duty or a member of the Selected Reserves at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  

   b.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  

   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).  Wards of state are not eligible for the benefit.  Once the benefits are transferred, children may use the benefit up to the age of 26.  

   d.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  

   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, 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 education benefits.  

   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 education benefits, VA-Form 22-1990e, to request to use the benefits.  

   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 one month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be granted an exception to policy to transfer his educational benefits under the provision of the TEB because he was neither informed nor aware that the transfer of benefits had to be made before he left military service, and he was not sufficiently counseled about the Program’s requirements, which in turn prevented him from transferring his benefit to his dependents.

2.  He was fully eligible to transfer his educational benefits under the TEB prior to retirement, but did not do so.  The program was implemented in July 2009.  He was transferred to the Retired Reserve on 6 August 2010.  Prior to retirement, he did not apply for the transfer of educational benefits.

3.  The DOD, Department of Veterans Affairs, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly 7 months after the program was implemented.

4.  The applicant's service and his sincerity are not in question; however, since the applicant retired on 6 August 2010, he had sufficient time to submit his application.  There is no evidence he exercised due diligence; therefore, he is ineligible for 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)                                         AR20110007920



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ABCMR Record of Proceedings (cont)                                         AR20120006833



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