IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011073 


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, in effect, an exception to policy to transfer educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to her dependent.

2.  The applicant states at the time of her discharge, her daughter had just reached the age of one.  She was not informed of the requirement to transfer the benefit while she was still in an active status.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that following a period of service as an enlisted Soldier in the Regular Army, she enlisted in the U.S. Army Reserve (USAR).  At a later date, she was commissioned as an officer in the USAR and continued to serve until 31 July 2010 when she was honorably discharged as a result of being twice nonselected for promotion to the rank of captain.  At the time of her discharge, she was credited with 10 years and 2 days of qualifying service for retirement.

2.  An advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, who recommended disapproval.  The advisory official stated:

	a.  The applicant did not provide any evidence showing she attempted to transfer prior to leaving military service and/or was given false information by a reliable source about the rules of transferring education benefits at any time during her service.  Her last day in service was 31 July 2010 and she would have been eligible to transfer the benefit if she transferred before she left service.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  The TEB online database shows the applicant had one eligible dependent enrolled in DEERS, her spouse.  The TEB database would not allow the applicant to transfer benefits to a child who was not enrolled in DEERS.  She did not complete the requirements in the TEB online database because she claims she was not aware of the requirement to transfer prior to leaving service.

	b.  Public Law 110-252, as amended by Public Law 111-377, identify the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.  Public Law 110-252 also establishes the legal requirements on the transferability of unused Post-9/11 GI Bill benefits.  This law limits the transfer of 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.

	c.  The Army, Department of Defense, 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.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers who left service during the first 90 days of the program (1 August-31 October 2009) were not fully aware of the requirement to transfer prior to leaving military service.

3.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to respond.  The applicant did not provide a response.

4.  On 22 June 2009, the 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:

	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.

5.  The policy further states the Secretaries of the Military Departments will:

	a.  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

	b.  maintain records for individuals who receive supplemental educational assistance under section 3316 of reference (a) and provide those records to the Defense Manpower Data Center and the VA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to have been fully eligible to transfer her education benefits to her spouse under the TEB prior to discharge, but she did not do so.  The program was implemented in July 2009 and she was discharged on 31 July 2010.  Prior to separation, she did not apply for the transfer of benefits while in an active status.  Additionally, there is no evidence showing her child was properly enrolled in DEERS; therefore, she would not have been eligible to transfer the benefit to her child at the time.

2.  The DOD, VA, and the Army conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The applicant continued to serve until she was honorably discharged in July 2010.  Her service and her sincerity are not in question.  However, since the program was implemented in August 2009, she had plenty of time to submit her application and/or to verify that her application was submitted in the proper manner.  There is no evidence she exercised due diligence. 
4275394.  There is neither an error nor an injustice in the applicant's transfer of benefits processing. Therefore, she is not entitled to the 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)                                         AR20120011073





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011073



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1