IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120011778 


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 his spouse or dependents under the Transfer of Education Benefits (TEB) provisions of the Post 9/11 GI Bill.

2.  The applicant states the Post 9/11 GI TEB was implemented on 1 August 2009 while he was on permissive temporary duty/terminal leave for retirement.  While out-processing for retirement he was not informed to transfer his Post 9/11 GI Bill to his dependents while he was still serving in military uniform.  He applied to transfer his benefits to his dependents and was denied on 25 April 2012 in accordance with the Department of Veterans Affairs (VA).

3.  The applicant provides:

* Retirement orders
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 9 April 2009 and 31 December 2009
* VA Certificate of Eligibility
* two letters from the VA

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to show he elected to transfer his benefits under the Post 9/11 GI Bill.  

2.  Counsel states the applicant retired on 31 December 2009 after 22 years of military service.  The applicant qualified for the TEB Program because he became retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and did not have to agree to serve any additional period upon completion of 20 years of active Federal service because he was retirement eligibility and have an approved retirement date.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the U.S. Army Reserve (USAR) on 24 July 1988.  He entered active duty in an Active Guard Reserve status on 18 April 1999.  He was honorably retired in the grade of lieutenant colonel on 31 December 2009.  He was credited with completing 20 years, 7 months, and 5 days of net active service and no time lost.

2.  During the processing of this case, on 30 July 2012, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command (HRC).  The advisory official recommended disapproval of the applicant's request.  The G-1 official stated:

	a.  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.  Based on the following details administrative relief was not recommended for the applicant 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 of transferring education benefits.  One of the documents provided by the applicant was a Certificate of Eligibility from the VA for him to use the Post 9/11 GI Bill, not his dependents.

	b.  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 31 December 2009.  He would have been eligible to transfer the benefit if he transferred it before he left the service.

	c.  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).

	d.  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 loss 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.

	e.  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.

	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.  He received an honorable discharge.

	g.  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 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 31 December 2009, which was not within 90 days after the program's implementation.  

	h.  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 submitted paperwork to the VA without requesting approval from the DoD first; therefore, he did not take the required steps to transfer benefits.

	i.  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.

	j.  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.  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).
on transition leave for retirement and he left the service within 90 days of implementation of the program.

3.  On 7 August 2012, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  

4.  In a letter, dated 4 October 2012, on behalf of the applicant, counsel reiterated the Post 9/11 GI Bill eligibility requirements and the applicant's service. Counsel referenced other GI Bill cases where relief was granted to change the service-member's military records to reflect timely election of transferring Post 9/11 GI Bill benefits to his/her dependents.  Counsel requests, in effect, the applicant be given relief by correcting his records to show he elected to transfer benefits under the Post 9/11 GI Bill to his eligible family members prior to his retirement date.

5.   On 4 January 2013, a staff member of the Defense Finance and Accounting Service verified the applicant was on terminal leave from 11 October through 31 December 2009.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend his record should be corrected to allow him to transfer his educational benefits to eligible family members under the TEB provision of the Post-9/11 GI Bill.

2.  The evidence of record shows he was on terminal leave from 11 October through 31 December 2009 and he was retired on 31 December 2009, after completing more than 20 years of service.  HRC 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 benefits prior to leaving military service.

3.  The applicant's last official day in the service was 31 December 2009; however, he effectively left Army control on 11 October 2009 when he went on transition leave, which was within 90 days of implementation of the program.  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 the evidence presented is 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 retirement, 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)                                         AR20120011778





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ABCMR Record of Proceedings (cont)                                         AR20120011778



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