IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120009821 


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

2.  The applicant states:

	a.  During the period 1 August 2009 to 1 April 2011 while assigned to the 7th Special Forces Group (SFG), Fort Bragg, NC, he was never informed of the option to transfer his Post-9/11 GI Bill benefits to his dependents and/or of the requirement to extend his term of service to receive approval of the transfer.  The first time he heard of it was on 10 January 2012 when he assisted a wounded warrior in packing his household goods for a move.  The wounded warrior stated he had been made aware of this right while he was assigned to Fort Sam Houston, TX.

	b.  He was assigned to the 7th SFG, Fort Bragg, NC, during the period June 1999 through March 2011.  The operation tempo didn't always allow time to participate in nice-to-do activities or even to visit the post education center; it was mission first, team always.  He feels his career counselor and the education center let him and other Soldiers down by failing to provide them with the information required to make an informed decision about the TEB.  If he had known, he would have done so on 1 August 2009 and would have agreed to meet the additional service obligation.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), two pages of newspaper articles, and a DD Form 93 (Record of Emergency Data).

CONSIDERATION OF EVIDENCE:

1.  Having prior Regular and Reserve service, the applicant's records show he enlisted in the Regular Army on 20 November 1996.  He served in staff and leadership positions and attained the rank/grade of sergeant first class (SFC)/E-7 on 1 June 2003.  His last duty assignment was with the 7th SFG, Fort Bragg, NC.

2.  He was honorably retired on 31 March 2011 and he was placed on the Retired List on 1 April 2011 in the rank SFC.  He completed a total of 20 years, 4 months, and 2 days of net active service.

3.  In the processing of this case an advisory opinion, dated 21 August 2012, was received from the Chief, Enlisted Career Systems Division, Department of the Army Office of the Deputy Chief of Staff, G-1.  The advisory official recommended disapproval of the applicant's request and stated, in part:

	a.  The authority to transfer unused education benefits to family members under Public Law 110-552 is given to the Secretary concerned to promote recruitment and retention of members of the Armed Forces.  A Soldier must be serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day in service was 31 March 2011.  He did not request to transfer his benefits before he left military service.

	b.  A Soldier must have 6 years of eligible service to transfer the benefits to a spouse and 10 years to transfer the benefits to eligible children.  The applicant had more than 20 years of service upon his retirement so he was eligible to transfer the benefits to his spouse.

	c.  A Soldier must have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  The TEB online database shows the applicant had one eligible family member enrolled in DEERS, his spouse.  He was eligible to transfer benefits to his spouse if he requested the transfer before he left the service and completed the 2-year obligation.

	d.  A Soldier should not be granted relief based on unawareness of 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 education benefits.  The applicant did not leave the service within 90 days of implementation of the program; his last day of service was 31 March 2011.

	e.  A Soldier must initially request the transfer through the DOD TEB online database.  The TEB database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed for VA access.  The respective dependent must then submit the application for VA educational benefits.  However, the applicant did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer benefits prior to leaving the service.

4.  On 21 August 2012, 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.

5.  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 family member 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 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.

6.  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 contends he should be allowed to transfer his Post-9/11 GI Bill educational benefits to his spouse because he was unaware of the program and the requirement to do so prior to his retirement.

2.  Notwithstanding his sincerity, 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.  While there may have been some confusion during the early stages after the implementation, he did not retire until nearly 2 years after the program was implemented.

3.  As he had been on active duty when the program was implemented in August 2009, he was fully eligible to transfer his educational benefits under the TEB prior to retirement.  He retired on 31 March 2011.  Prior to his retirement while still serving on active duty, he did not apply for the transfer of educational benefits.  There is no evidence he exercised due diligence.

4.  As the applicant failed to transfer the benefits while serving on active duty as required by law, there is an insufficient evidentiary basis for granting the 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 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)                                         AR20120009821



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ABCMR Record of Proceedings (cont)                                         AR20120009821



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