IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120009459 


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

2.  The applicant states he is a victim of injustice.  He claims he meets the 
20-year retirement eligibility requirement and served for 3 years after 10 September 2001.  He completed 25 years and 4 months of service upon his retirement on 1 April 2011.  He was deployed until September 2010 when he received his official retirement orders.  He further states he was briefed on the Post-9/11 GI Bill TEB, but he was not informed that he had to be on active duty to transfer the benefits.

3.  The applicant provides:

* Orders 022-720
* Account Classification Order Number 022-720

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from service in the Regular Army on 31 March 2011 in the rank/grade of sergeant first class/E-7.

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

3.  The applicant provides a copy of his deployment orders which show he deployed to Afghanistan in support of Operation Enduring Freedom on or about 1 April 2010.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Afghanistan during the period 28 March through 5 September 2010.

5.  During the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Department of the Army Office of the Deputy Chief of Staff, G-1, dated 25 July 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 he can provide evidence showing he attempted to transfer benefits prior to leaving military service and/or was given false information by a reliable source (Education Center or Career Counselor about the rules of transferring education benefits.

	b.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transferring educational benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day of service was 31 March 2011.  He would have been eligible to transfer the benefits if he had done so before he left military service.

	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 20 years of service upon his retirement; therefore, he was eligible to transfer benefits to either his spouse or his children (if he completed the request before leaving military service).

	d.  A Soldier may only transfer benefits to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (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 benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database shows the applicant had four eligible dependents enrolled in DEERS and two children who were not eligible due to their ages.  The applicant claims he was briefed on the TEB provision of the Post-9/11 GI Bill, but was not told he had to complete the action prior to leaving military service.  Regardless, he has provided no documentation to support this claim.

	e.  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 transferred his benefits prior to leaving service he would not have incurred an additional service obligation because he had more than 20 years service as of 1 August 2009.

	f.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefit.  There is no evidence of an adverse action in the applicant's record.  He received an honorable discharge.

	g.  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 (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 31 March 2011 which was not within 90 days after the program's implementation.  Additionally, the Fort Drum Installation Retention Office and Education Center were contacted and had no record of the applicant inquiring about transferring his benefits.  The Senior Retention Operations Noncommissioned Officer stated unit leaders are constantly providing information through many means about the program including in the deployed environment.  The Fort Drum Education Center verified the applicant attended the required briefing which covers the requirement to transfer benefits before leaving military service.

	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 education benefits (VA Form 22-1990e) to request to use the benefits.  The applicant claims he was not aware of the requirement so none of the required steps to transfer benefits were taken.

	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.

	j.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by VA.  No evidence was provided by the applicant that his dependents made a previous claim to the VA.  If the applicant is granted relief, the beginning date for his dependents to use the transferred benefits will be the date granted relief unless previous specific claims were submitted to the VA (verified by VA upon approval).

6.  On 26 July 2012, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

7.  On 22 June 2009, DOD guidance established the criteria for eligibility and transfer of unused educational 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 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;

	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.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an exception to policy to transfer educational benefits under the TEB provision of the Post-9/11 GI Bill to his family members was carefully considered and found to be without merit.

2.  The evidence of record shows the applicant was eligible to transfer his educational benefits to his family members under the TEB prior to retirement, but there is no evidence to show he did so.  He contends he was he was never briefed that he had to transfer his benefits prior to leaving active duty.

3.  Notwithstanding the applicant's contention that he was never briefed with regard to the need to transfer his benefits prior to retiring, the applicant is ultimately responsible to take advantage of all of the resources which are available to him and to stay current on all entitlements in order to ensure a smooth transition into retirement for himself and his family.

4.  The law requires a member to be in an active status at the time the individual requests to transfer educational benefits.  The applicant is not in an active status.  Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his family members.

5.  DOD, the 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.  Despite his deployment, the applicant did not retire until nearly a year and a half after the program was implemented.  In addition, the Fort Drum Education Center verified the applicant attended a briefing which covered the requirement to transfer benefits before leaving military service.

6.  The applicant's service and his sincerity are not in question.  However, since the applicant retired on 31 March 2011, nearly a year and a half after the program was implemented he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  Therefore, he is ineligible to transfer his benefits.



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)                                         AR20120009459



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ABCMR Record of Proceedings (cont)                                         AR20120009459



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