IN THE CASE OF:	  

		BOARD DATE:  4 January 2013

		DOCKET NUMBER:  AR20120011320 


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 his educational benefits to a family member under the Transfer of Education Benefits (TEB) provisions of the Post 9/11 GI Bill.

2.  He states he wants to transfer his benefits to his daughter.  He is requesting a waiver because he retired on 1 October 2009.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 18 March 1988.  He was honorably retired on 30 September 2009.  He was credited with completing 21 years, 6 months, and 13 days of net active service.

2.  During the processing of this case, on 19 July 2012, an advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Officer of the Deputy Chief of Staff, G-1.  The advisory official recommended administrative relief for the applicant because he retired within 90 days of the implementation of the program.  The G-1 official stated:

	a.  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.

	b.  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.  

	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 September 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 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); 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 four eligible dependents enrolled in DEERS.  He 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 September 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 23 July 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 records should be corrected to allow him, as an exception to policy, to transfer his educational benefits to eligible dependents under the TEB provision of the Post-9/11 GI Bill.
2.  The evidence of record shows he was honorably retired on 30 September 2009 after completing more than 20 years of service.  The Office of the Deputy Chief of Staff, G-1 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 in an active status was 30 September 2009 which was within 90 days of implementation of the program.  The applicant contends he was not aware of the requirement to transfer his educational benefits prior to retirement; therefore, none of the required steps to transfer his benefits were taken.  Based on the foregoing and as a matter of equity, his records should be corrected to show he transferred his benefits to either his spouse or children under the TEB provisions of the Post-9/11 GI Bill.

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 dependents prior to his transfer to the Retired Reserve, 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)                                         AR20120011320





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ABCMR Record of Proceedings (cont)                                         AR20120011320



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