BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120008179 


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

2.  The applicant states he applied for the Post 9/11 transfer of benefits while on active duty, during his Army Career and Alumni Program briefing assuming he could transfer the benefit to his daughter.  He was not informed he had to be on active duty to transfer the benefit or of the website to transfer.  He only discovered this information through the Department of Veterans Affairs.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 July 1982 and he held military occupational specialty 19Z (Senior Armor Sergeant).  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of master sergeant (MSG)/E-8.

2.  On 31 July 2009, he was retired by reason of sufficient service for retirement and was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 August 2009.  He was credited with 27 years and 15 days of creditable active service.

3.  A review of his records shows he was not a member of the service on or after 1 August 2009, which is a requirement established in law.  This program requires the following criteria be met.  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 July 2009.  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 27 years of service but he was not eligible to transfer the benefit to his spouse or child(ren) because he was not in the service on or after 1 August 2009.

	c.  Have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  The applicant is presumed to have had his spouse and/or children enrolled in DEERS.  If he had been eligible to transfer the benefits, he would have been allowed to transfer those benefits; however, he left military service prior to the effective date of this program.  Therefore, the incentive was not available to him.

	d.  Agree to complete any additional service obligation.  If the applicant transferred his benefits prior to leaving military service, he would not have incurred any additional service obligation because he had more than 20 years.  He also had an honorable discharge and no adverse action.

	e.  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 Department of Veterans Affairs (VA).  The respective dependent must then submit an application for VA benefits.  Since the applicant states he was unaware of the program process, none of these steps were taken.

	f.  An individuals 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 applicant's last active duty date was 31 July 2009 which was prior to program implementation.  

4.  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.

5.  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.

6.  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 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 16 July 1982 to 31 July 2009.  The Post-9/11 GI Bill program was not in effect during his period of military service.  Although he retired on 31 July 2009, 1 day prior to the implementation of the program, the law requires a member to be on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer.  

2.  The applicant was neither on active duty nor 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.

3.  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)                                         AR20120008179





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ABCMR Record of Proceedings (cont)                                         AR20120008179



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