IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120008109 


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

2.  The applicant states he was never informed nor was he aware that the Post 9/11 GI Bill benefits had to be transferred while still in service.  With the state of the present economy his spouse was displaced from her job and she is now wishing to pursue another career in the medical field.  He would like to use the benefits he is entitled to and deserves with respect to his over 34 years of service to the country and two deployments to Iraq.  He needs these benefits to lessen the monetary expense of college and living expenses.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge From Active Duty) with a separation date of 5 June 2010
* DD Form 93 (Record of Emergency Data), dated 24 April 2009


CONSIDERATION OF EVIDENCE:

1.  He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 15 May 1987.  He had previously served 8 years, 7 months, and 18 days in the Regular Army in an enlisted status and 11 months and 19 days in the USAR in an enlisted status.
2.  He completed two tours in Iraq from 18 March 2003 to 21 February 2004 and from 28 May 2009 to 24 April 2010.

3.  On 31 May 2011, he was transferred to the Retired Reserve.  He had completed 33 years, 6 months, and 6 days of qualifying service for retirement pay at age 60.

4.  A letter, dated 17 May 2012, to his Congressional representative from U.S. Army Resources Command (HRC) responded to inquiry submitted on his behalf. HRC advised the Congressional representative that he had sufficient time from August 2009, (the program's implementation) until May 2011 (his last day of service) to research and transfer education benefits to his dependents.  Regrettably, he did not transfer his benefits.

5.  On 1 June 2012, an advisory opinion was obtained from U.S. Army Human Resources Command (HRC) in the processing of this case.  HRC recommends disapproval of the applicant's request.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 HI Bill Benefits.  Section 3020 of 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.

	a.  His last day in the service was 31 May 2011.  He would have been eligible to transfer the benefit if he had transferred it before he left service. 

	b.  He had more than 33 years of qualified service upon his retirement, so he was eligible to transfer his benefits to either his spouse or children (if he completed the request before leaving military service).

	c.  The TEB online database shows he had four eligible dependents enrolled in Defense Eligibility Enrollment Reporting System (DEERS).  He 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 military service.

	d.  If he had transferred his benefits prior to leaving military service he would not have incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.  He had no adverse action in his record.  
	e.  He should not be granted relief based on unawareness of the law, program, rules, or procedures, unless he left the service during the implementation phase (first 90 days of the program).  The Army, Department of Defense (DOD), 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.  His last day of military service was 31 May 2011, which was not within 90 days after the program's implementation.

	f.  A Soldier must initially request the transfer through the 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.  He claims he was not aware of the requirement; none of the required steps to transfer benefits were taken.

	g.  The TEB website shows no action was taken by the applicant to transfer any benefits.

6.  On 12 June 2012, he submitted a rebuttal to the advisory opinion.

	a.  He stated he heard the commercials concerning the Post 9/11 GI Bill and the ability to transfer the benefits to a dependent.  However he never heard a commercial or even the websites indicate the details of having to transfer benefits before exiting the military.

	b.  He was deployed to Iraq when the program was announced and he acknowledges he was informed about the benefits and that as a Reservist, he would now receive them along with a new transferability clause.  Nothing was communicated in detail nor did the unit have the time or the luxury to have information sessions since they were primarily involve in daily operations.

	c.  After returning from deployment and back to work he did not think about the GI Bill.  He states he had no reason to, since at the time, he had no plans of using it or transferring it to one of his dependents.  He never expected that the transfer of benefits to a dependent would have to be started before he left the military.  

	d.  He discovered the benefits must be transferred to a dependent before leaving the service when his wife decided to go back to school starting on 
21 May 2012.

7.  Public Law 110-252, dated 30 June 2008, authorized the Post-9/11 GI Bill which became effective 1 August 2009.  This law states that an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.

8.  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 Component service.

9.  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.

10.  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 because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so 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.  He was fully eligible to transfer his educational benefits under the TEB prior to his retirement but did not do so.

2.  DOD, VA, 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.  A Soldier must be on active duty or a member of the Selected Reserve at the time of the transfer of the benefits.

3.  By his own statement he admits he was aware of the ability to transfer his Post 9/11 GI Bill benefits to his dependents.  He initially learned of this benefit while deployed to Iraq and indicated he didn't have time to do further research.  However, he didn't transfer to the Retired Reserve for approximately 11 months after he returned from deployment.

4.  He readily admits he didn't have any plans to use his GI Bill benefits or to transfer them to one of his dependents until his wife decided to go back to school in May 2012, approximately 1 year after he transferred to the Retired Reserve.

5.  The law requires a member to be in an active status at the time he/she requests the transfer.  The applicant is not in an active status and he did not leave military service during the implementation phase of the program.  Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his spouse.

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)                                         AR20120008109



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ABCMR Record of Proceedings (cont)                                         AR20120008109



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