BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120008282 


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 her family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 

2.  The applicant states prior to her medical discharge she personally went to the Department of Veterans Affairs (VA) and followed the instructions given to her by an education coordinator.  Due to the lack of support from her chain of command and installation commander she submitted several Congressional and White House inquiries.  The backlash caused her family the worst treatment imaginable and she was literally on her own, nearly homeless.  She did not receive her benefit certificate for the Post 9/11 GI Bill until late August 2011, after her discharge and as of this date, no information on her dependents has been loaded into the TEB site.  She states she stood up for herself and she believes her son's ability to get into college has been adversely impacted as a result.  She further states she is 100 percent disabled, served for over 29 years, and is hopeful this matter will be resolved.   

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* several letters and memoranda
* email correspondence 



CONSIDERATION OF EVIDENCE:

1.  Having served over 28 years, the applicant was honorably retired from the U.S. Army Reserve (USAR) due to permanent disability on 11 July 2011.

2.  There is no indication she applied to transfer her educational benefits under the TEB provision of the Post-9/11 GI Bill to her family members while on active duty or as a member of the Selected Reserve on or after 1 August 2009.

3.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, dated 11 June 2012, who stated:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  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.  Based on the details below, we do not recommend administrative relief for the applicant unless she can provide evidence showing she attempted to transfer benefits prior to leaving military service and/or was given false information by a reliable source about the rules of transferring education benefits.

	b.  Regarding the TEB and Defense Enrollment Eligibility Reporting System (DEERS) processes:  On 12 August 2011, the applicant contacted the Education Incentives Branch (EIB) stating she had submitted a TEB request, but lacked confirmation of the request.  After reviewing the TEB online database, the applicant was informed that the database did not reflect her submission and she was asked to email whatever information she had to support her claim that she had submitted a TEB request prior to her retirement date of 12 July 2011.  On   12 August 2011, she emailed a copy of TEB paperwork that she submitted to the VA on 15 August 2011.  The EIB informed the applicant the request had to be submitted first through the TEB online database, and secondly to the VA.  When TEB historical information is questioned or absent by the service member, the EIB usually advises the service member to seek TEB historical information through the Defense Manpower Data Center (DMDC).  However, since this office had numerous discussions/emails with the applicant in August 2011, the EIB made a request to DMDC on behalf of the applicant on 17 August 2011.  The DMDC TEB point of contact ran a historical file check on the applicant's access to the TEB and DMDC confirmed that the applicant did not submit a TEB request prior to her retirement date of 12 July 2011.  The DMDC confirmed the applicant's family members were enrolled in DEERS and eligible for the TEB prior to her retirement date.  Therefore, she could have submitted a TEB request prior to her retirement date of 12 July 2011.
   c.  A copy of the TEB webpage, dated 28 April 2012, the applicant submitted to the ABCMR shows the applicant accessed the TEB webpage after her retirement date of 12 July 2011.  Her dependents are not listed on the page because she had not transferred her education benefits prior to her retirement date.
   
   d.  Regarding the possibility of inadequate counseling, the applicant did not provide any documentation to support her claim.  It was further noted the applicant was discharged from service almost 2 years after the implementation of the Post 9/11 GI Bill; therefore, significant information was available to her.
   
   e.  Regarding the possibility of a backlash due to her filing Congressional and White House inquiries, neither the DMDC nor EIB received Congressional or White House inquiries on behalf of the applicant.  Therefore, the possibility of a backlash did not exist.  
   
   f.  A Soldier must be currently on Active Duty or a member of the Selected Reserve at the time of transferring education benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day of service was 11 July 2011.  She would have been eligible to transfer the benefit if she had transferred it before she left service.
   
   g.   A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least ten years of eligible service to transfer to eligible children.  The applicant had more than 28 years of service upon her retirement; therefore, she was eligible to transfer to either her spouse or her children (if she completed the request before leaving military service).
   
   h.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the 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 benefit.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The TEB online database shows the applicant had two eligible dependents enrolled in DEERS.  The applicant claims she completed the TEB request in the online database; however, she has no documentation to support her claim of submission, inadequate counseling, or backlash.
   
   i.  A Soldier 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 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 12 July 2011, which was not within 90 days after the program’s implementation. 

   j.  A Soldier must initially request to transfer benefits on the Department of Defense's 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 to VA access.  The respective dependent must then submit an application for Veterans Administration education benefits, VA-Form 22-1990e, to request to use the benefits.  The applicant claims she was not aware of the requirement, so none of the required steps to transfer benefits were taken.
   
   k.  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 one month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.
   
   l.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by VA.  No evidence was provided by the applicant that her dependents made a previous claim to the VA.  If the applicant is granted relief the beginning date for her dependents to use the transferred benefits will be the date granted relief unless previous specific claims were submitted to VA (verified by VA upon approval).

4.  On 20 June 2012, the advisory opinion was furnished to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 29 July 2012, the applicant responded with a rebuttal, wherein she stated she was unable to send in a formal response due to a house fire at her residence on 3 June 2010.  She also requested the contact numbers for DEERS and TEB input personnel; however, to this date, she has not provided any additional evidence pertaining to her case. 

5.  On 22 June 2009, Department of Defense guidance established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual 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, provided he or she:
	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;

	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 Department of Defense) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute;

	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; and

	d.  for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required.

6.  The policy further states the Secretaries of the Military Departments will:

	a.  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

	b.  maintain records for individuals who receive supplemental educational assistance under section 3316 of reference (a) and provide those records to the Defense Manpower Data Center and the VA.

7.  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.  

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence that shows the applicant submitted a request to transfer educational benefits to her family members while in an active status.  It appears personnel from the EIB and DMDC went through a process to confirm if and when the applicant submitted a request to transfer the benefits on the TEB website.  However, no evidence of a submission was found.

2.  The applicant contends that she is suffering from a backlash due to submitting several Congressional and White House inquiries; however, the applicant provided no evidence nor do her records contain any evidence in support of her claim.   

3.  The Department of Defense (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.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until well after the program was implemented.

4.  The applicant's service and his sincerity are not in question.  However, as the applicant had been in the USAR since the program was implemented in July 2009, she had plenty of time to submit her application and/or to verify her application was submitted in the proper manner.  There is no evidence she exercised due diligence.  The applicant had access to information regarding the requirement to request a transfer of benefits through the DOD TEB online database.  She did not do so.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

5.  The requirement to transfer the benefit while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  Additionally, the Board does not correct records solely for the purpose of establishing entitlement to other programs or benefits.  As the applicant failed to transfer the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting her 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)                                         AR20120008282



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ABCMR Record of Proceedings (cont)                                         AR20120008282



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