BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120012776 


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 her educational benefits to her daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  She states the Post-9/11 GI Bill was not in existence when she was separated from the military.  She was not informed that it was necessary to request transferability while still in the military based on the foregoing reason.

3.  She provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she enlisted in the Regular Army on 13 November 2001.  She was honorably released from active duty on 15 August 2005 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  She was credited with completing 3 years, 9 months, and 3 days of net active service with no lost time.

2.  In an advisory opinion, dated 17 October 2012, the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, stated:

	a.  Based on the foregoing, the G-1 did not recommend relief 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 10-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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 as a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependents on or after 1 August 2009.  The applicant's last day in military service was 15 August 2005.  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 benefits to eligible children.  The applicant had less than 5 years of service upon her retirement.  She was not eligible to transfer to either her spouse or her children because the law requires Soldiers to be in the service on or after 1 August 2009 and have at least 6 years of service.

	d.  A Soldier may only transfer benefits to eligible dependents.  To be considered an eligible dependent the spouse of 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).  Wards of State are not eligible for the benefits.  Once the benefits are transferred, children may use the benefits up to age 25.  The TEB online database shows the applicant had no eligible dependents because she was not in the service on or after 1 August 2009 and did not have 6 years in service.  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 Solider had in the service on 1 August 2009.  The applicant would have incurred an additional service obligation of 4 years if she had been in the service on 1 August 2009, but she was not eligible because she left the 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 her record.  She received an honorable discharge.

	g.  A Solider 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 educational benefits.  Her last day in the service was 15 August 2005 which was before the program's implementation.

	h.  A Solider must initially request to transfer benefits on the DOD TEB online database.  The TEB database was operational on 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information was 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 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.

	j.  In order for this office to recommend relief for this applicant to have the ability to correct her education records, she would have to be on active duty or a member of the Selected Reserve on or after 1 August 2009 and her DD Form 214 (Certificate of Release or Discharge from Active Duty) would have to first be corrected by the appropriate office.  If the applicant feels her service records are inaccurate, she should submit pertinent documents to the Army Board for Correction of Military Record to correct her DD Form 214.

3.  The advisory opinion was provided to the applicant for acknowledgement/
rebuttal on 18 October 2012.  She did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to allow her to transfer her educational benefits under the TEB provision of the Post-9/11 GI Bill.

2.  The evidence of record shows she was honorably released from active duty on 15 August 2005 and transferred to the Individual Ready Reserve.  In order to transfer educational benefits, the law required a member to be serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  As her last day in military service was 15 August 2005 and there is no evidence she was a member of the Selected Reserve on or after 1 August 2009, she was not eligible to transfer educational benefits to either her spouse or her children.  There is no evidence of record and she provided none to show she met one or more of the requirements established by law for transfer of educational benefits.

3.  The applicant is commended for completion of her honorable active duty service; unfortunately, she left active duty before 1 August 2009.  Therefore, this incentive was not available to her at the time of her separation and it is still not available to her unless Congress changes the 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 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)                                         AR20120012776



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ABCMR Record of Proceedings (cont)                                         AR20120012776



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