IN THE CASE OF: 

		BOARD DATE:	    3 January 2013

		DOCKET NUMBER:  AR20120009844 


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 approval to transfer 1 month of her educational benefits to two additional dependent children, J____ M____ and A____ M____, under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states her spouse recently attended a pre-retirement briefing and learned that the election to transfer educational benefits to each child had to be made prior to separation.  When she retired in 2010, she was aware the election to transfer benefits must be made before separation.  However, she was not aware that each child had to have had at least 1 month transferred to him or her in order to redistribute months if changes were required after separation.  She was not properly briefed on the implications of transferring her Post-9/11 GI Bill benefits prior to her retirement.

3.  The applicant provides a letter from the Department of Defense (DOD) Manpower Data Center.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and she executed an oath of office on 19 August 1994.  She served in staff and leadership positions and she attained the rank/grade of major/O-4 on 13 June 2007.

2.  She was assigned to the 350th Civil Affairs Command, Pensacola, FL.

3.  On 27 September 2009, she transferred 36 months of her educational benefits to her dependent child, C____ M____.

4.  On 28 January 2010, the U.S. Army Human Resources Command (HRC) issued the applicant a 20-year letter.  This memorandum notified her that she had completed at least 20 years of qualifying service and she would be eligible for retired pay upon application at age 60.

5.  Orders 10-090-00009, dated 31 March 2010, issued by Headquarters, Civil Affairs and Psychological Operations Command, Fort Bragg, NC, reassigned her from her current unit to the Retired Reserve effective 1 April 2010.

6.  In the processing of this case, an advisory opinion, dated 17 August 2012, was received from the Chief, Educational Incentives Branch, HRC.  The advisory official recommended disapproval of the applicant's request and stated that Public Law 110-552 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits and limits eligibility to 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.

	a.  A Soldier may only transfer benefits 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.

	b.  The TEB online database shows the applicant had two eligible family members enrolled in DEERS.  She was eligible to transfer benefits to two children, CM and AM.  She did transfer benefits to CM, but not to AM.  She claims she did not complete the requirements in TEB online database for AM because she was not aware of the requirement to transfer at least 1 month to AM prior to leaving the service.  The third child she requests to transfer benefits to, J____ M____, was not listed as a dependent in DEERS.  Therefore, J____ M____ was completely ineligible for benefits.

	c.  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, DOD, and the 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 service was "1 April 2010" which was not within 90 days after the program's implementation.

	d.  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 to the VA.  The respective dependent must then submit the application for VA educational benefits.  The applicant transferred benefits to one child, but not to the other children.

	e.  Changes to the amount of months allocated to dependents can be made at any time, to include once you leave 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 they are not authorized to transfer unused benefits.  The TEB database shows no action was taken by the applicant to transfer any benefits to A____ M____ or J____ M____ prior to her transfer to the Retired Reserve.

7.  In a response to the advisory opinion received on 17 September 2012, the applicant stated:

	a.  On 27 September 2009, she elected to transfer educational benefits to her middle child, CM.  She did not elect to transfer any benefits to her oldest son, AM, because they had a pre-paid college plan with the State of Florida.  She was never made aware that she had to choose at least 1 month per child in order to transfer the benefits between children.  The only requirement she was made aware of was that she had to elect to transfer benefits to at least one person in her family, spouse or child.

	b.  At the time of her initial election, she was approximately 7 months pregnant with her youngest son, JM.  It was a high-risk pregnancy and she was completing drills at the local Army National Guard unit in New Bern, NC.  Her parent unit was the 350th Civil Affairs Command, Pensacola, FL.  She does not have a record of when she last attended a drill in Pensacola but an official with HRC, Ms. T____ E____, did confirm her last pay period was 1-5 November 2009.  This 5-day period was conducted at the New Bern location.  Due to issues with her pregnancy, she was not traveling to Florida for drills.  There were no other pay periods between 5 November 2009 and her transfer to the Retired Reserve on 1 April 2010.

	c.  Her youngest son, J____ M____, was delivered by emergency Caesarean section on 10 December 2009.  She recovered from the surgery and was placed on maternity leave until her transfer to the Retired Reserve.  As she is the spouse of an active duty Marine officer, they considered but decided against enrolling J____ M____ in DEERS.  She believed he would fall under her spouse's military benefits and with her retirement coming up, it wasn't required.  Upon receipt of the advisory opinion, J____ M____ was added to DEERS.

	d.  She did not have any formalized pre-separation or pre-retirement counseling.  Her spouse is retiring next year, and he received pre-retirement counseling in May 2012 that included a detailed brief on VA benefits and the Post-9/11 GI Bill.  During his briefing, it was stressed that enrolling in TEB is not enough, that at least 1 month should be selected for each child in order to ensure flexibility in the future.  This is the information that she never received.

	e.  When the Post-9/11 GI Bill was introduced, there was a lot of confusion with regard to the TEB.  The only thing she knew in 2009 was that she had to elect TEB before transferring to the Retired Reserve.  The specifics and the exact details were left to the services to devise the specifics on how the TEB would be administered.  HRC's advisory opinion indicated the Army had a 90-day implementation phase and that a Soldier should not be granted relief base on unawareness unless he or she left the service during the implementation phase.

	f.  While she transferred to the Retired Reserve on 1 April 2010, for all intents and purposes her last period of duty was 1-5 November 2009, and the duty was not even performed at her parent command.  It is safe to say she was not properly briefed with regard to her benefits.  During that time frame, she was dealing with a life-threatening pregnancy and had not been to her parent command in months.  She was never made aware of her benefits and certainly never signed her benefits away.

	g.  During her conversation with Ms. T____ E____, all the information above was discussed.  Ms. T____ E____ indicated that the additional information provided greater detail to the nature of her original request to transfer 1 month of educational benefits to her youngest son, J____ M____, and advised that she may also want to request 1 month be transferred to A____ M____, so that is what she is requesting.

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 meets other criteria.

9.  Public Law 110-252, section 3020, 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.  A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent.

10.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be allowed to transfer 1 month of her Post-9/11 GI Bill educational benefits to two additional dependent children because she was unaware of the requirement to do so.

2.  The evidence of record shows the applicant was transferred to the Retired Reserve on 1 April 2010.  In September 2009, she transferred some of her educational benefits under the TEB to her dependent child, C____ M____.  At the time, she had one additional dependent child in DEERS, A____ M____.  However, she did not transfer any benefits to A____ M____ while she was serving in the USAR.  A third child, J____ M____, was born on 10 December 2009.  She did not transfer any benefits to J____ M____ while she was serving in the USAR for the almost 4 months after his birth.

3.  Notwithstanding her 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.  It is apparent she was aware of the requirement to request TEB through the DOD TEB online database prior to her transfer to the Retired Reserve as she transferred benefits to one dependent child, C____ M____, through the TEB database.  In addition, she also stated she did not transfer benefits to her dependent child, A____ M____, because he already had a pre-paid college plan and she did not add J____ M____ to DEERS because he qualified for military benefits based on her spouse serving on active duty.

4.  The requirement to transfer the benefits while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  As the applicant failed to transfer the benefits to two of her dependent children while in an active status, as required by law, there is an insufficient evidentiary basis for granting her 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.



      _________________________
       	     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)                                         AR20120009844



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ABCMR Record of Proceedings (cont)                                         AR20120009844



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