IN THE CASE OF: 

		BOARD DATE:	    18 December 2012

		DOCKET NUMBER:  AR20120009565 


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 dependent under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* he was not informed of the requirements to transfer entitlements before he was medically retired 
* he was medically retired due to an active duty service injury

3.  The applicant provides a copy of his NGB Form 22 (Department of the Army and Air Force National Guard Bureau Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 5 December 1985, the applicant enlisted in the Army National Guard (ARNG).  He completed training and was awarded military occupational specialty 62B (Construction Equipment Repairman).  He was honorably discharged from the ARNG on 7 January 2009 and his name was placed on the Temporary Disability Retired List (TDRL).  On 23 April 2010, the applicant's name was removed from the TDRL and he was permanently retired with a 30 percent disability rating in the rank/grade of staff sergeant.  

3.  During the processing of this case, on 27 July 2012, two advisory opinions were obtained from the Acting Chief, Personnel Policy Division, and the Chief, Personnel Programs, Resources and Manpower Division, National Guard Bureau, Arlington, VA.  The advisory officials recommended disapproval of the applicant's request because the applicant was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  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 a member of the Selected Reserve.  These officials 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 family members (on or after 1 August 2009).  The applicant's last day in the ARNG was 7 January 2009.  

	b.  After a thorough review of the Soldier's available records, it was determined that he did gain eligibility for Post 9/11 GI Bill benefits before he left the service.  However, he was never eligible to transfer those benefits to dependents because he separated from the service prior to implementation of the transferability provision of the program 1 August 2009.

4.  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 to eligible children.  The applicant had 23 years of service upon his separation from the ARNG; furthermore, he was not eligible to transfer benefits to dependent because the law requires Soldiers to be on active duty or in the Selected Reserve on or after 1 August 2009. 

	a.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member, 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.  He could not complete the requirements in the TEB online database before he left the service because this incentive was not available to him because this program was not yet implemented.

	b.  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 Selected Reserve or on active duty on 1 August 2009, he would not have incurred an additional service obligation, but he was not eligible because he was not on active duty and left the ARNG prior to 1 August 2009.

	c.  A Soldier must have no adverse action flag and have an honorable discharge (if no longer in the service) to transfer the benefits.  There is no evidence of any adverse action in the applicant's record.  He received an honorable discharge.

	d.  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 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 ARNG was 7 January 2009, which was before the program's implementation.

	e.  A Soldier must initially request to transfer benefits on the DOD 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 for VA access.  The respective family member 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.

	f.  Changes to the amount of months allocated to family members 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 because the program was not yet available.

5.  On 5 November 2012, the applicant was provided copies of the advisory opinions for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

6.  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.

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

8.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that 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's request for an exception to policy to transfer educational benefits to his dependent under the TEB provision of the Post-9/11 GI Bill was carefully considered.

2.  The applicant's last day in the ARNG was 7 January 2009.  The law requires a member to be in an active status on or after 1 August 2009 at the time he/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 education benefits under the TEB provision of the Post-9/11 GI Bill to his dependent.

3.  The applicant's service and his sincerity are not in question.  However, the requirements of this program are set in the 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.  Therefore, 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)                                         AR20120009565



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ABCMR Record of Proceedings (cont)                                         AR20120009565



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