BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120006854 


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 educational benefits to eligible dependents under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states he had listed his dependents on the TEB website and was approved to transfer his educational benefits.  When he tried to transfer his educational benefits to one of his dependents at a later time, the one dependent was not listed on the TEB website.  When he tried to add him to the eligibility list he was informed he could not change it because he was retired.  He was never informed or counseled that he had to ensure he had all of his dependents listed on the TEB website prior to his retirement.

3.  The applicant provides:

* Reserve unit reassignment orders
* retirement orders
* electronic correspondence between himself and the U.S. Army Human Resources Command (HRC)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was assigned to the Retired Reserve on 12 March 2010.  He was credited with completing more than 23 years of service.

2.  In an advisory opinion, dated 21 May 2012, the Chief, Education Incentives Branch, HRC, recommended no administrative relief for the applicant.  The Education Incentives Branch Chief stated:

	a.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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.  Based on the following details, administrative relief was not recommended for the applicant because he did not provide evidence showing he attempted to transfer benefits to his dependent son, J____ K____, prior to leaving military service and/or that he was given false information by a reliable source about the rules of transferring educational benefits.  However, the applicant transferred education benefits to his dependent child, R____ K____, while he was still in military service.

	b.  A Soldier must currently be serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent on or after 1 August 2009.  The applicant's last day in military service was 12 March 2010.  He would have been eligible to transfer the benefits if he had done so before he left the service.

	c.  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 23 years of service upon his transfer from the Selected Reserve to the Retired Reserve, so he was eligible to transfer benefits to either his spouse or children if he completed the request before leaving military service.

	d.  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.  The TEB online database shows the applicant had three eligible dependents enrolled in DEERS.  He was eligible to transfer benefits to the following dependents:  his spouse, R____ K____ (child), and J____ K____ (child).  M____ K____ (child) would have been eligible to receive educational benefits if she were a full-time student enrolled in an institution of higher learning and if the applicant had transferred benefits to her prior to her 23rd birthday on 26 October 2009.  The applicant did not transfer benefits to her prior to her 23rd birthday and while he was still in the service; therefore, she is ineligible to receive educational benefits. The applicant 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 military 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 had been in the service on 1 August 2009, he would have incurred no additional service obligation because he had more than 20 years of service as of 1 August 2009.

	f.  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.

	g.  Soldiers 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, 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 12 March 2010, which was not within 90 days after the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the Department of Defense 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 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 the benefits were taken.

	i.  Changes to the number of months allocated to dependents can be made at anytime, to include once they leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  The TEB website shows no action was taken by the applicant to transfer any benefits to his son, J____ K____.

	j.  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 the VA.

3.  On 23 May 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  He did not respond.

4.  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.  The policy states, in part, that those who retire on or before 1 August 2009 are not eligible to transfer unused Post-9/11 GI Bill benefits by law because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.

5.  He provides copies of email correspondence between himself and HRC wherein he was advised that if he did not transfer benefits to his son, J____, prior to his retirement, there was no way to do so after the fact.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to allow him to transfer his educational benefits to his dependent son under the TEB provision of the Post-9/11 GI Bill as an exception to policy.

2.  The evidence of record shows he was transferred to the Retired Reserve on 12 March 2010 after completing more than 23 years of service.  In order to transfer his educational benefits, he was required to have been a member of the service on or after 1 August 2009, which is a requirement established in the law.  As his last date in service was 12 March 2010, he would have been eligible to transfer the benefits if he had done so before he left military service.  The TEB website shows no action was taken by the applicant to transfer any benefits to his son prior to leaving the service.  However, he did transfer educational benefits to his dependent child, R____ K____, while he was still in the service.

3.  The applicant is commended for completion of over 23 years of dedicated and honorable service; unfortunately, he did not provide evidence showing he attempted to transfer his benefits to his dependent son prior to leaving military service and/or that he was given false information about the rules for transferring educational benefits.  The evidence shows he did transfer educational benefits to his dependent child, R____ K____, while he was still in military service.

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 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)                                         AR20120006854



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ABCMR Record of Proceedings (cont)                                         AR20120006854



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