IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120010958 


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 an exception to policy to transfer educational benefits to her eligible dependents under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states she was not aware she had to be in an active duty status to transfer her GI Bill to her eligible dependents.  She received a letter from the Department of Veterans Affairs (VA), dated 18 August 2009, that states she was eligible to transfer her educational benefits, effective 1 August 2009.  

3.  The applicant provides:

* Letter from the VA, dated 18 August 2009
* DD Form 93 (Record of Emergency Data), dated 22 October 2008
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the Regular Army on 31 May 2009 due to sufficient service for retirement in the rank/grade of staff sergeant/E-6.  She completed 20 years, 4 months, and 13 days of creditable active service.

2.  On 10 August 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  The advisory official recommended denial of the applicant's request and stated:  

	a.  Based on the details below, administrative relief is not recommended for the applicant because she was not a member of the service on or after 1 August 2009, which is a requirement established in law.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, section 3020 of Public Law 110-252, 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.

	b.  A Soldier must be currently on active duty or 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 military service was 31 May 2009.  She is not eligible to transfer her Post 9/11 GI Bill benefits.

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  The applicant in this case had more than 20 years of service upon her retirement, but she was not eligible to transfer to either her spouse or her children because the law requires Soldiers to be in service on or after 1 August 2009.

	d.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent, the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  Eligible dependent 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 the 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 no eligible dependents to transfer to because she was not in the service on or after 1 August 2009; this incentive was not available to her because the program was not yet implemented.  

	e.  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 service on 1 August 2009, she would not have incurred any additional service obligation, but she was not eligible because she left service prior to 1 August 2009.  

	f.  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.  She received an honorable discharge.

	g.  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 (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 educational benefits.  The applicant's last day in the service was 31 May 2009 which was before the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the DOD 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 dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits.  The applicant did not take the required steps to transfer benefits because the program was not yet available. 

	i.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a 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.

3.  The applicant was provided a copy of this advisory opinion; however, she did not respond. 

4.  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.

	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 for the maximum amount of time allowed by such policy or statute, or

	c.  is or becomes retirement eligible during the period from 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 18 January 1989 to 31 May 2009. The law requires a member to be on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer.  The applicant was neither on active duty nor in the Selected Reserve during the time the program was implemented.  Therefore, she is not eligible to transfer her educational benefits under the TEB provision of the Post-9/11 GI Bill to her family members.

2.  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)                                         AR20120010958





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ABCMR Record of Proceedings (cont)                                         AR20120010958



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