BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009569 


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

2.  The applicant states, in effect, he was not informed of the requirement to transfer his GI Bill to his eligible dependents had to be made while he was still on active duty.  

3.  The applicant provides a DA Form 31 (Request and Authority for Leave) and a response to an advisory opinion.

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the Regular Army, on 30 November 2009, due to sufficient service for retirement in the rank/grade of sergeant major/E-9.  He completed 31 years, 10 months, and 24 days of creditable active service.

2.  During the processing of this case, on 2 July 2012, an advisory opinion was obtained from the Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, Washington D.C.  The advisory official recommended approval of the applicant's request and stated:

	a.  Based on the details below, administrative relief is recommended for the applicant because he left service within 90 days of the implementation of the program.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving military service.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, section 3020 of Public Law 110-252, 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.

	b.  A Soldier must currently be on active duty or a member of the Selected Reserve at the time of TEB to his or her dependent on or after 1 August 2009.  The applicant's last day in service was 30 November 2009.  He would have been eligible to transfer if he transferred before he left 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, so he was eligible to transfer his benefits to either his spouse or his children if he had completed the request before leaving service.

	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 eligibility 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 in DEERS).  Wards of the state are not eligible for the benefit.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The TEB online database shows the applicant had three eligible dependents enrolled in DEERS.  He was eligible to transfer benefits to his spouse and two children.  The applicant did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer prior to leaving service.

	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 transferred his benefits prior to leaving military service he would not have incurred an additional service obligation because he had more than 20 years of service as of 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.  He received an honorable discharge.

	g.  A Soldier should not be granted relief based on unawareness of the law, program, 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 affairs campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent TEB.  The applicant's last day in the service was 30 November 2009, which was within 90 days after the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the DOD's 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 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 you leave the 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 the military service, they are not authorized to transfer unused benefits.  The TEB website shows not action taken by the applicant to transfer any benefits.

	j.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the 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 upon approval.

3.  A copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant responded and concurred with the advisory opinion on 16 July 2012.

4.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB provision of the 9/11 GI Bill prior to retirement; but he did not do so.  The program was implemented in July 2009.  The applicant retired on 30 November 2009.  

2.  The 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.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.

3.  Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits.  This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  His retirement date was 30 November 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.

BOARD VOTE:

___x__  ___x_____  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to 
transfer Post-9/11 GI Bill benefits to his family members prior to retirement, provided all other program eligibility criteria are met.



      _______ _ 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)                                         AR20120009569





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ABCMR Record of Proceedings (cont)                                         AR20120009569



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