BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120010957 


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

2.  He states that at the time of his retirement he was not afforded the opportunity to transfer his Montgomery GI Bill (MGIB) Post-9/11 educational benefits to his children due to the fact this entitlement only became available after he retired.

3.  He submitted:

* DD Form 214 (Certificate of Release or Discharge from Active Army)
* DD Form 93 (Record of Emergency Data)
* ARPC Form 249-E (Chronological Statement of Retirement Points)
* Department of Veterans Affairs (VA) Pamphlet 22-09-01 

CONSIDERATION OF EVIDENCE:

1.  His DD Form 214 shows he retired from the Regular Army (RA) in the rank/grade of lieutenant colonel (LTC)/O-5 on 30 September 2008 by reason of sufficient service for retirement.  It further shows he completed 20 years, 4 months, and 6 days of creditable active service.


2.  The applicant submitted:

	a.  a DD Form 93, dated 24 June 2003, that lists his family members -- a spouse and three children.
	
	b.  an ARPC Form 249-E, dated 26 June 2012, that shows he had a total of 
24 years, 2 months, and 28 days of creditable active service for pay.

3.  He submitted VA Pamphlet 22-09-01, dated October 2011, wherein he highlighted:

	a.  The Post 9/11 GI bill is an education benefit program for individuals who served on active duty after 10 September 2001.

	b. …if you served at least 90 days aggregate dates on active duty on or after 1 September 2001…or were discharged honorably from active duty….

	c.  At least 36 months, 100%.

	d.  …You will be eligible for benefits for 15 years from your last….

4.  On 13 July 2012, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended disapproval of the applicant's request to transfer Post-9/11 GI Bill education benefits because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.  The advisory official further stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of benefits to his/her dependent on or after 1 August 2009.  The applicant's last day in the service was 30 September 2008.  As a result, he was not eligible to transfer his Post-9/11 GI Bill benefits.

	b.  A Soldier must have at least 6 years of eligible service in order to transfer 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, but he was not eligible to transfer benefits to his family members because the law requires Soldiers to be in the service on or after 1 August 2009.

	c.  A Soldier may only transfer benefits to eligible family members.  To be considered an eligible family member, the spouse or dependent must be enrolled in the 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 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.  The TEB online database shows the applicant had three eligible family members enrolled in DEERS if he had met all the prerequisites (including being a member of the selected Reserve or on active duty on or after 1 August 2009).  He could not complete the requirements in the TEB online database before he left the service because this incentive was not available to him at the time of his retirement.

	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 been in the service on 1 August 2009 he would have incurred no additional service obligation, but he was not eligible because he left military service prior to 1 August 2009.

	e.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase of the program (first 90 days).  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 educational benefits.  The applicant's last day in the service was 30 September 2008 which was before the program's implementation.

	f.  A Soldier must initially request to transfer benefits on the DOD 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 to VA for access.  The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e) to request to use the benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits because the program was not available at the time of his retirement.

	g.  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 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.  The TEB website shows no action was taken by the applicant to transfer any benefits because the program was not available at the time of his retirement.

5.  On 16 July 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not provide a response.

6.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.

7.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  The general eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service.

	b.  Service members also must have served on active duty in the RA; as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

8.  Active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be allowed to transfer benefits to his family members under the TEB provision since he was not afforded the opportunity to do so before he retired.

2.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  Therefore, this information would have been available to the applicant prior to the effective date of his retirement.
3.  Evidence of record shows he voluntarily retired on 30 September 2008 by reason of sufficient service for retirement.  Implementation guidance was not established until the summer of 2009, and the TEB on-line database was not operational until 29 June 2009.  He could not have been eligible because he departed Army control before any of the details were finalized.

4.  The law requires a member to be in an active status at the time he/she requests the transfer.  Those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  The applicant was not in an active status on or after 1 August 2009; therefore, he is not eligible to transfer his educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120010957



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ABCMR Record of Proceedings (cont)                                         AR20120010957



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