IN THE CASE OF: 

		BOARD DATE:	      6 November 2012

		DOCKET NUMBER:  AR20120008378 


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

2.  The applicant states he met all the qualifications for eligibility to transfer his Post-9/11 GI Bill benefits except that he retired before the bill authorizing eligibility went into effect.  He served in Iraq after 10 September 2001 and received an honorable discharge on 10 August 2005.  He became eligible for retirement from the U.S. Army Reserve (USAR) and retired on 15 June 2007 after 21-plus years in the USAR and on active duty.  He is presently a member of the Retired Reserve; therefore, he is still a member of the Armed Forces.  Because he retired before 1 August 2009 it was not possible for him to be informed of the opportunity to transfer his educational benefits to his dependents.

3.  The applicant provides:

* 2003 and 2005 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* Retired Reserve assignment orders


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was honorably retired from the USAR on 14 June 2007.  He was credited with completing more than 20 years of qualifying service for retired pay at age 60.

2.  In an advisory opinion, dated 25 June 2012, the U.S. Army Human Resources Command Education Incentives Branch recommended no administrative relief for the applicant for the following reasons.

	a.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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.  Based on the following details, administrative relief was not recommended for the applicant because he was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, which is a requirement established in law.

	b.  A Soldier must currently be serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent(s) on or after 1 August 2009.  The applicant's last day in military service was 14 June 2007.  He was not eligible to transfer his Post-9/11 GI Bill benefits.

	c.  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 benefits to eligible children.  The applicant had more than 21 years of Reserve service upon retirement, but he was not eligible to transfer benefits to either his spouse or children because the law required a Soldier to be in the service on or after 1 August 2009.

	d.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent, the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  Eligible dependents 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 three eligible dependents enrolled in DEERS. 
If he had met all the prerequisites (including being a member of the Selected Reserve or on active duty on or after 1 August 2009), he would have been eligible to transfer his benefits to his spouse and two children.  The applicant could not complete the requirements in the TEB online database before he left military service because this incentive was not available to him.

	e.  A Solider 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 Selected Reserve or on active duty on 1 August 2009, he would have incurred an additional service obligation of 0 years, but he was not eligible because he left the service prior to 1 August 2009.

	f.  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.

	g.  Soldiers 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 (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 14 May 2007, well before the program's implementation.

	h.  A Soldier must initially request to transfer benefits using the DOD TEB online database.  The TEB online database was operational on 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 did not take the required steps to transfer benefits because the program was not yet available.

	i.  Changes to the number of months allocated to dependents can be made at anytime, to include once they leave 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.

3.  On 23 August 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  He did not respond.

4.  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 not eligible to transfer unused Post-9/11 GI Bill benefits by law because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to allow him to transfer his educational benefits to his eligible dependents under the TEB provision of the Post-9/11 GI Bill as an exception to policy.

2.  The evidence of record shows he was honorably retired from the USAR on 14 May 2007 after completing more than 20 years of qualifying service.  In order to transfer his educational benefits he was required to have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 – a requirement established by law.  As his last date in military service was 14 May 2007, he was not eligible to transfer educational benefits to either his spouse or his children.  There is no evidence of record and he provided none to show he met one or more of the requirements established by law for transfer of educational benefits.

3.  The applicant is commended for completion of over 20 years of dedicated and honorable service; unfortunately, he left the service before 1 August 2009.  Therefore, this incentive was not available to him at the time of his retirement and it is still not available to him unless Congress changes the law.

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 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)                                         AR20120008378



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ABCMR Record of Proceedings (cont)                                         AR20120008378



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