BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011338 


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 transfer of his Post-9/11 GI Bill benefits to his dependents.

2.  The applicant states he was not informed he had to transfer entitlements to his dependents before retiring.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the U.S. Army Reserve (USAR), effective 
6 June 2011, in the rank of lieutenant colonel/O-5.

2.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Human Resources Command (AHRC) Chief, Education and Incentives Branch who recommended the applicant be denied relief because he did not provide evidence showing he attempted to transfer prior to leaving military service and/or he was given false information by a reliable source about the rules to transferring education benefits. The opinion indicates the law governing the transferability of unused Post-9/11 GI Bill benefits places legal limitations on transferability.  Members must register and complete transfer prior to leaving the service.  Relief based on lack of information on the program within the first 90 days of implementation on 1 August 2009 is normally considered appropriate; however, this is not applicable in this case. 

3.  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 which went into effect on 1 August 2009.  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 Department of Veterans Affairs is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  A Soldier must currently be 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 5 June 2011.  He would have been eligible to transfer the benefits if he had done so before he left military service.

	b.  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 benefits to eligible children.  He had more than 22 years of service upon his retirement, so he was eligible to transfer benefits to either his spouse or children if he had completed the request before leaving military service.

   c.  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.  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); the child will lose eligibility status upon less than full-time status or graduation.  Wards of 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 three eligible dependents enrolled in DEERS, a spouse and two children.

	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 prior to leaving military service he would not have incurred an additional service obligation.

	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 the applicant's record.  He was honorably retired.

	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 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 5 June 2011 which was not within 90 days of the program's implementation.

	g.  A Soldier must initially request to transfer benefits on the Department of Defense'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 educational benefits, 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.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave 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.

	i.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.  No evidence was provided by the applicant that her dependents made a previous claim to VA.  If the applicant is granted relief, the beginning date for his dependents to use the transferred benefits will be the date relief is granted unless previous specific claims were submitted to VA (verified by the VA upon approval).

4.  On 13 August 2012, he was provided a copy of the AHRC advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, no response has been received.

5.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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.

6.  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.

DISCUSSION AND CONCLUSIONS:

1.  His request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits has been carefully considered.  However, the governing law is very specific in requiring that a member register and transfer benefits prior to leaving active duty in order to qualify for the program.

2.  The Army has generally granted relief to members who left active duty or the Selected Reserve within the first 90 days after implementation of the program on 1 August 2009.  In this case, the applicant was not separated until 6 June 2011, almost 2 years after implementation of the program.  As a result, equity relief in this case would not be appropriate given it would be contrary to law.

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)                                         AR20120011338





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ABCMR Record of Proceedings (cont)                                         AR20120011338



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