IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120008898 


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, correction of his records to show he elected to transfer his education benefits to his dependents in accordance with the Transfer of Educational Benefits (TEB) provision of the Post 9/11 GI Bill.

2.  The applicant states:

* he was not aware that he was required to transfer these benefits to his children prior to his retirement date
* he served on active duty from July 1987 to July 2011 and he became eligible for retirement in July 2007
* he participated in the GI Bill using payroll deduction from 1991 to 1992
* he wants to transfer his benefits to his dependent children, now age 18, age 15, and age 7
* if he had known about the requirement to transfer benefits prior to his retirement, he would have done so while he was still on active duty

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

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years of total service for retired pay, the applicant was retired on 1 July 2011, in the rank of lieutenant colonel (O-5).

2.  During the processing of this case, on 22 October 2012, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, who recommended disapproval of the applicant's request because he did not provide evidence showing he attempted to transfer his benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits. The advisory official stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his family member(s) on or after 1 August 2009.  The applicant's last day of service was 30 June 2011.  He was eligible to transfer his post 9/11 GI Bill benefits.

	b.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  The applicant has more than 20 years of service upon his retirement, so he was eligible to transfer to either his spouse or his children (if he had completed the request before leaving military service). 

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child(ren) must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  The applicant had four eligible dependents to transfer; however, did not complete the requirement in the TEB online database.  He claims he was not aware of the requirement to transfer benefits prior to leaving service.

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on the date of their transfer request.  Had the applicant transferred education benefits prior to leaving military service he would have not incurred an additional service obligation.  

	e.  A Soldier must have no adverse action (flag) and have an honorable discharge to transfer benefits.  The applicant had no adverse action.  He was honorably retired.

	f.  A Soldier should not be granted relief based on unawareness of law, program rules, or procedures unless he/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 (DVA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on Post 9/11 GI Bill and subsequent transfer of education.  The applicant's last day in the service was 30 June 2011, which was almost 2 years after implementation of the program.

	g.  A Soldier must initially request benefits on the DOD's TEB online database which was operational on 29 June 2009, along with other required steps.  The applicant did not take any of the required steps to transfer benefits.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave 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.

	i.  The DVA is restricted to pay for education benefits by compensating no more than 1 retroactive year from the date a claim is received by the DVA.  No evidence was provided that the applicant's dependents made a previous claim to the DVA.

3.  A copy of the advisory opinion was forwarded to the applicant for his information and opportunity to respond.  No response was received.

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 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 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 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, documented accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  He submits no evidence to substantiate his contention that he was unaware he had to be on active duty at the time of transfer of education benefits to his family members.  The applicant was retired effective 1 July 2011.  He would have been eligible to transfer benefits had he done so prior to his retirement.

3.  The evidence shows the 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 months after the implementation, the applicant did not retire until almost 2 years after the program was implemented.

4.  The applicant's argument that he was unaware that the law required he transfer his educational benefit prior to retiring is not sufficiently convincing given the length of time between the start of the program in 2009 and his retirement in July 2011.

5.  In view of the foregoing, the applicant's request should be denied.  

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)                                         AR20120008898





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ABCMR Record of Proceedings (cont)                                         AR20120008898



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