IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120008133 


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 the remaining 12 months of educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his children.

2.  The applicant states:

* He did not submit this request while on active duty or in the Selected Reserve
* He retired from the U.S. Army Reserve (USAR) on 25 September 2008
* He was never informed of the requirement to transfer the entitlement while on active duty or in the Selected Reserve
* He was assigned to a unit in San Antonio, TX, but cross-leveled and/or transferred to a mobilizing unit in Kansas City, MO for deployment to Iraq
* The entire process for discharge processing was done electronically or by mail since he was deployed

3.  The applicant provides his Retired Reserve orders. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 10 February 1965.

2.  Having had prior service, the applicant was appointed as a Reserve commissioned officer of the Army on 6 April 1992 and of the Army National Guard (ARNG) on 15 May 1992.  
3.  He served in a variety of stateside or overseas assignments, including a period of mobilization from 1 April 2006 to 18 November 2007, and he attained the rank of major (MAJ). 

4.  He was discharged from the ARNG on 18 November 2007 and transferred to the USAR Control Group (Reinforcement). 

5.  On 15 May 2008, the U.S. Army Human Resources Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  On 25 August 2008, Headquarters, 89th Regional Readiness Command, Wichita, KS published official orders transferring him to the Retired Reserve.  

7.  On 9 October 2012, an advisory opinion was obtained from an official at the Office of the Deputy Chief of Staff, G-1, in the processing of this case.  The advisory official recommended disapproval of the applicant's request because the applicant was not a member of the service on or after 1 August 2009.  Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.  This official also stated:

	a.  A Soldier must be currently 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 25 September 2008.  He is not eligible to transfer his post 9/11 benefits.

	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 to eligible children.  The applicant in this case had more than 20 years of service upon his retirement, but he was not eligible to transfer the benefit because the law requires Soldiers to be in the service on or after 1 August 2009. 

	c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in 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 benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database shows the applicant had four eligible dependents enrolled in DEERS.  If he had met all the prerequisites (including being a member of the Selected Reserve or on active duty after 1 August 2009), he would have been eligible to 

transfer to his spouse or any of his three children.  He could not complete the requirements in the TEB online database before he left service because this incentive was not available to him.

	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 been in the service on or after 1 August 2009 he would not have incurred an additional service obligation but 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.  There is no evidence of an adverse action in the applicant's record.  He received an honorable discharge.

	f.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she 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.  The applicant's last day in the service was 25 September 2008 which was before program implementation. 

	g.  A Soldier must initially request to transfer benefits on the DOD 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's last day in the service was 25 September 2008 which was before program implementation. 

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves 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 because the program was not yet available. 

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

9.  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 if the individual:

	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 from 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.

10.  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.

11.  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.  The applicant served in the USAR and/or the ARNG from April 1992 to September 2008.  The law requires a member to be on active duty or in the Selected Reserve at the time the individual requests the transfer.  The applicant was not on active duty or in the Selected Reserve at the time this program was implemented.  Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.

2.  The applicant's service and his sincerity are not in question.  However, the requirements of this program are set in the law and any changes to this law are not within the purview of this Board.  There is neither an error nor an injustice in his case and as such, he is not entitled to 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)                                         AR20120008133





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ABCMR Record of Proceedings (cont)                                         AR20120008133



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