IN THE CASE OF:	  

		BOARD DATE:	   27 November 2012 

		DOCKET NUMBER:  AR20120008969 


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

2.  The applicant states the TEB was implemented in 2009 while he was on terminal leave.  No guidance, instruction, or suspense dates were provided to him.  Finally, in 2010, the appropriate guidance was released; however, he feels the guidance is unclear.  He contacted the Department of Veterans Affairs (VA) website but did not receive adequate guidance from the educational customer service representative.  He attempted to follow the guidance he had received and correct his record.  In March 2012, he requested TEB for his daughter and was told he may not be eligible.  As a war veteran the best thing that could happen to him and his family would be allowing his daughter access to a good education, this program could make that possible.

3.  The applicant provides:

* VA rating decision, dated 3 August 2009
* Certificate of retirement
* Certificate of appreciation
* Printout from milConnect website
* DD Form 214 (Certificate of Release or Discharge from Active Duty)



CONSIDERATION OF EVIDENCE:

1.  After having had previous enlisted service, the applicant enlisted in the Regular Army and held military occupational specialty 68K (Medical Laboratory Specialist).  The highest rank/grade he attained while serving on active duty was master sergeant/E-8.

2.  His DD Form 214 shows he was honorably retired from active duty on 31 July 2009 after completing 21 years, 9 months, and 9 days of net active federal service. 

3.  He provided a certificate or retirement showing he was retired from the Army on 1 August 2009 and an undated certificate of appreciation.

4.  He provided a printout from his account on the milConnect website wherein it states he may not be eligible to transfer his education benefits.  

5.  He provided a copy of his VA rating decision, dated 3 August 2009.

6.  During the processing of this case an advisory opinion was obtained from an official at the Office of the Deputy Chief of Staff, G-1, on 5 September 2012.  The advisory official recommended disapproval of the applicant's request because he was not a member of the service on or after 1 August 2009, which is a requirement established in Law.  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 as 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 dependant on or after 1 August 2009.  The applicant's last day in military service was 31 July 2009.  He is not eligible to transfer her Post-9/11 GI Bill 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 benefits 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 benefits because the law requires Soldiers to be in the service on or after 1 August 2009.

	c.  A Soldier may only transfer benefits to eligible dependants.  To be considered an eligible dependant the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible family member status upon turning age 21 or at marriage.  Eligible family member 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 no eligible family members to transfer the benefit to because he was not in the service on or after 1 August 2009.  This incentive was not available to him because the program was not yet implemented.

	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 have incurred an additional service obligation of 1 year, but he was not eligible because he left military 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 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 31 July 2009 which was before the program's implementation.

	g.  The applicant included a disability claim, but it is not relevant to his transfer of Post 9/11 GI Bill benefits because he did not receive a separation due to disability.

	h.  A Soldier must initially request to transfer benefits on 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 the benefits because the program was not yet available.

	i.  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.

7.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

8.  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 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 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.

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

10.  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 retired from active duty with over 20 years of active federal service on 31 July 2009.  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 or she requests the transfer.  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 educational benefits under the TEB provision of the Post-9/11 GI Bill to his dependants.

2.  The applicant's service and his sincerity are not in question.  However, the requirements of this program are set in 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.

3.  Regrettably, in view of the foregoing there is no basis for granting the applicant's 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)                                         AR20120008969





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ABCMR Record of Proceedings (cont)                                         AR20120008969



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