BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009860 


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

2.  The applicant states he began outprocessing in June 2009.  He finished the administrative portion of his paperwork on 23 July 2009.  He had his household goods shipped to his home of record and signed out on transition leave on 23 August 2009.  At no time was he informed that if he wanted his education benefits to be transferred to one of his family members he had to complete the action while on active duty.  He was verbally told he would be eligible for the Post-9/11 GI Bill.  That was the extent to which he was informed.  He began to seek information in April 2012 to transfer his benefits to his daughter and he was told he was longer eligible to do so.

3.  The applicant provides:

* Officer Record Brief
* DA Form 7301-R (Officer Service Computation for Retirement)
* Voluntary retirement request memorandum
* DA Form 31 (Request and Authority for Leave)
* Change in retirement date request
* Four DD Forms 1172 (Application for Uniformed Services Identification Card DEERS (Defense Eligibility Enrollment Reporting System) Enrollment)
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 June 1995 and 30 November 2009
* His daughter's acceptance letter for the University of Illinois

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 16 March 1989.  He was discharged on 6 June 1995 to accept an appointment as a warrant officer.  He entered active duty as a warrant officer on 7 June 1995, and he continued to serve until he was retired on 30 November 2009 by reason of sufficient service for retirement in the rank/grade of chief warrant officer four (CW4)/W-4.  He completed 20 years, 10 months, and 18 days of creditable active service with no time lost.

2.  During the processing of this case, on 9 October 2012, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command (HRC).  The advisory official recommended administrative relief for the applicant.  The G-1 official stated:

	a.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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.  Based on the following details administrative relief was recommended for the applicant because he was on transition leave for retirement and he left the service within 90 days of implementation of the program.

	b.  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 requirement to transfer the benefits prior to leaving military service.

	c.  A Soldier must be currently on Active Duty or a member of the Selected Reserve at the time of transfer of education benefits to his/her family members (on or after 1 August 2009).  The applicant's last day in service was
30 November 2009.  He would have been eligible to transfer the benefit if he transferred it before he left the service.

	d.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  The applicant had more than 20 years of service upon retirement; therefore, he was eligible to transfer to either his spouse or children (if he completed the request before leaving military service).

	e.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child must be enrolled in DEERS and be eligible for DEERS benefits.  Children loss 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); the child will lose eligibility status upon less than full-time status or graduation.  Wards of the state are not eligible for the benefit.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database shows the applicant had six eligible dependents enrolled in DEERS as of 30 November 2009, his last date of service.  The applicant was eligible to transfer to his spouse and children.  He did not complete the requirements in the TEB online database because he claims he was not aware of the requirements to transfer prior to leaving the service.

	f.  A Solider 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.

	g.  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.

	h.  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 education benefits.  The applicant's last day in the service was 30 November 2009, which was not within 90 days after the program's implementation; however, he was on terminal leave during this time and may not have received pertinent information.

	i.  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 education benefits, the
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.

	j.  Changes to the number of months allocated to dependents can be made at anytime, to include once they leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  The TEB website shows no action was taken by the applicant to transfer any benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

	k.  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 shows his dependents made a previous claim to the VA.  If he is granted relief, the beginning date for his dependents to use the transfer of benefits will be the date granted unless previous specific claims were submitted to the VA (verified by the VA upon approval).

3.  On 10 October 2012, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to allow him to transfer his educational benefits to eligible family members under the TEB provision of the Post-9/11 GI Bill.

2.  The evidence of record shows he was retired by reason of sufficient service for retirement on 30 November 2009 after completing more than 20 years of creditable active service.  The Chief, Education Incentives Branch, HRC, opined that although significant measures were taken to disseminate the transferability of unused Post-9/11 GI Bill benefits many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.

3.  The applicant's last day of active service was on 30 November 2009, which was within 90 days of implementation of the program.  However, he was on transition leave during this time and he may not have received sufficient information to take the appropriate actions.  It appears he was not aware of the requirement; therefore, none of the required steps to transfer his benefits were taken.

4.  In view of the foregoing and as a matter of equity, his record should be corrected to show he is eligible to transfer his benefits to either his spouse or children under the TEB provisions of the Post-9/11 GI Bill as recommended below.

BOARD VOTE:

__x___  ___x_____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 on 30 November 2009, 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)                                         AR20120009860



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