IN THE CASE OF:	   

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120010733 


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, as an exception to policy, the Transfer of Education Benefits (TEB) under the provisions of the Post-9/11 GI Bill to his children.

2.  The applicant states he retired on 31 January 2004.  However, he was a Retiree recall and served on active duty from 20 January 2008 to 19 January 2010.  He adds that:

* He was not informed that he needed to transfer his benefits prior to completing his service
* He was not allowed to remain on active duty past 2 years; therefore, he could not meet the GI Bill extension requirements
* He was not allowed to attend the Army Career and Alumni Program (ACAP) because he was previously retired and briefed
* He was told there were no funds available to go on temporary duty to attend an ACAP briefing

3.  The applicant provides:

* Self-authored statement
* Letter from the Office of the Deputy Chief of Staff, G-1 to the applicant's Member of Congress
* Email exchange between the applicant and the Army G-1
* 
DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 January 2010
* DD Form 214 for the period ending 31 January 2004
* DD Form 214 for the period ending 4 October 1982
* Applicant's Congressional correspondence
* Student (College) Invoice Fall 2012
* Various articles regarding the Post-9/11 GI Bill

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army (RA) from 5 October 1978 through 4 October 1982, the applicant enlisted in the RA on 3 March 1987 and he held military occupational specialty 79R (Recruiter).

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 3 November 2003, in anticipation of his upcoming retirement, he attended a pre-separation counseling (ACAP briefing).

4.  He retired on 31 January 2004 by reason of sufficient service for retirement and on 1 February 2004, he was placed on the Retired List in the rank/grade of SFC/E-7.  He was credited with 20 years, 10 months, and 28 days of creditable active service.

5.  He volunteered to enter active duty under the Retiree Recall Program and he was subsequently ordered to active duty on 20 January 2008 for a period of
1 year, 11 months, and 30 days, terminating on 18 January 2010 (amended to read 19 January 2010).

6.  He was honorably released from active duty on 19 January 2010 by reason of completion of required active service.

7.  Subsequent to his release from active duty, he communicated with his Member of Congress regarding his eligibility for the transfer of benefits.  A letter, from the Army G-1 to his Member of Congress, dated 3 January 2012, stated:

* The requirement to be on active duty or in the Selected Reserve is embedded in the law
* The applicant did not execute the transfer via TEB web page to any of his family members prior to leaving the military
* 
The Army, DOD, and the Department of Veterans Affairs (VA) initiated a massive public campaign plan on the Post-9/11 GI Bill

8.  During the processing of this case, on 17 October 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  The advisory official stated that Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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.  Based on the details below, the advisory official recommended disapproval of the applicant's request unless he can provide evidence that he attempted to transfer the benefit prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits. 

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to dependents (on or after 
1 August 2009).  The applicant's last day in service was 19 January 2010.  He would have been eligible to transfer the benefit if he transferred it before he left service.

	b.  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 had completed the request prior to leaving military service.

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child(ren) must be enrolled in Defense Eligibility Enrollment 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(ren) is/are enrolled as a full-time student and unmarried (verified by DEERS).  Wards of 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 was eligible to transfer the benefit to his spouse or three children but 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 service. 

	d.  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 transferred his benefits to his eligible family members 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.

	e.  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 his record.  He received an honorable discharge.

	f.  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, DOD, and the 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 19 January 2010 which was not within 90 days after the program's implementation.  He originally retired on 31 January 2004 but came back on active duty status as a Retiree recall from 20 January 2008 to
19 January 2010.

	g.  A Soldier must initially request to transfer benefits on the DOD's 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 a VA Form 22-1990E (Application for Family Member to Use Transferred Benefits).  The applicant claims he was not aware of the requirement; therefore, none of the required steps to transfer benefits were taken.

	h.  Changes to the amount of months allocated to family members can be made at anytime, to include once the service member leaves military service, provided he or she allocates at least one month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer the benefit. 

9.  On 1 November 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.  On 13 November 2012 he responded wherein he stated:

* The rules explained by DOD and the Army did not take into account Retiree recalls and since there was no provision in the law regarding this category, he believes the rules do not apply in his case
* He met the eligibility regarding years of service, DEERS enrollment, and other criteria
* Despite the massive media campaign, many Soldiers were unclear where to find the correct answer regarding this program
* He contacted the VA and he was told as long as he served after
11 September 2011, he was eligible for this benefit
* He served his country faithfully for over 24 years and his record speaks for itself
* Although the transfer of benefits is used as an incentive option, his service is equal to that of everyone who served
* Information regarding this program were flawed and Retiree recalls were not mentioned or addressed 

10.  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 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.

11.  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.

12.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  However, the policy does apply to those 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.  There is insufficient evidence that shows the applicant submitted a request to transfer education benefits to his family members while on active duty.  There is nothing in his record confirming he submitted a request to transfer the benefits on the TEB website.

2.  The DOD, 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, the applicant did not retire within 90 days after the program was implemented.

3.  The applicant's service and his sincerity are not in question.  However, the applicant was on active duty when the program was implemented in August 2009 and he remained on active until 18 January 2010, several months after the program was implemented; therefore, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  The law requires a member to be on active duty or in the Selected Reserve regardless of whether he was a Retiree recall.  Being a Retiree recall did not change the fact that he was on active duty.

4.  There is no evidence he exercised due diligence.  The applicant had access to information regarding the requirement to request TEB through the DOD TEB online database.  He did not do so.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

5.  The requirement to transfer the benefit while a member is in 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.  Additionally, the ABCMR does not correct records solely for the purpose of establishing entitlement to other programs or benefits.

6.  As the applicant failed to transfer the benefit while on active duty, as required by law, there is an insufficient evidentiary basis for granting his 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)                                         AR20120010733



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ABCMR Record of Proceedings (cont)                                         AR20120010733



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