IN THE CASE OF:	

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120007561 

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

2.  The applicant states:

   a.  during his active duty tenure and prior to his retirement, he had no knowledge of his option to transfer his GI Bill entitlement to his dependents;
   
   b.  he used some of his benefits to obtain his Associates Degree and would have taken advantage of his option to transfer his benefits had he known he could; and 
   
   c.  his military assignments allowed him to work outside the mainstream and/or routine Army and as a result, his unit often forgot him and he did not receive updates on Army policies and many of their benefits.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retirement order
* DD Form 93 (Record of Emergency Data)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 April 1983 and he held military occupational specialty 92G (Cook).  He served in a variety of stateside assignments and one overseas assignment.  He attained the rank of master sergeant (MSG)/E-8.

2.  He continuously served until he was retired from the Army on 31 December 2003.  The DD Form 214 shows he completed 20 years and 9 months of creditable active duty service.

3.  His DD Form 93 shows he is married and has two dependent children; a son born 27 September 1989 and a daughter born on 15 March 1994.

4.  On 6 May 2012, an advisory opinion was obtained in the processing of this case.  An official in the Office of the Deputy Chief of Staff, G-1, recommends disapproval of the applicant's request because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 August 2009.  The applicant retired on 31 December 2003.  He would not have been eligible to transfer the benefits before he retired.

	b.  Have 6 years of eligible service to transfer the benefit to a spouse and 
10 years to transfer the benefit to children.  The applicant had over 20 years of service but he was not eligible to transfer the benefit to either his spouse or children because he was not in the service on or after 1 August 2009.

	c.  Have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  Children lose eligibility 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).

	d.  Agree to complete any additional service obligation.  If the applicant would have been in the service on 1 August 2009, he would not have incurred an additional service obligation since he was not eligible because he left service prior to 1 August 2009. 

   e.  A Soldier must have no adverse action flag, and have an honorable discharge to transfer the benefits.  The applicant had an honorable discharge and no adverse action.

	f.  A Soldier should not be granted relief based on unawareness of the law, program rules, procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense, and Department of Veteran 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 education benefits.  The applicant’s last day in the service was 31 December 2003, which was before the program’s implementation.

   g.  A Soldier must initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on
29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  The respective dependent must then submit an application for VA benefits.  The applicant did not take the required steps to transfer benefits because the program was not yet available.

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

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

7.  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 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.

8.  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, by law, not eligible to transfer unused Post-9/11 GI Bill benefits.  However, the policy does apply to those retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 1 April 1983 to 31 December 2003.  The Post 9/11 GI Bill program was not in effect during his period of military service.  The law states only those individual who served on active duty on or after 1 August 2009 are eligible to transfer education benefits under the provisions of the Post 9-11 GI Bill.

2.  Regretfully, based on the law that is in effect, he is not eligible to transfer his benefits.

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)                                         AR20120007561





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ABCMR Record of Proceedings (cont)                                         AR20120007561



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