IN THE CASE OF:	  

		BOARD DATE:	  2 May 2013

		DOCKET NUMBER:  AR20120014534 


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, correction of his records to show he applied to transfer his education benefits to his son under the Transfer of Educational Benefits (TEB) provision of the Post 9/11 GI Bill.

2.  The applicant states:

* his son applied to "Al The New England Institute of Art"
* his son is also trying to begin in the Fall Semester which begins on 6 September 2012
* any and all assistance in receiving a Certificate of Eligibility is greatly appreciated 

3.  The applicant provides a VA Form 21-4138 (Department of Veterans Affairs (VA) Statement in Support of Claim) and DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  With 12 years, 11 months, and 5 days of total service for retired pay purposes, the applicant was honorably discharged from the Massachusetts on 18 November 2011, due to being medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness).

2.  According to previous guidance from the Department of the Army, Office of the Deputy Chief of Staff, G-1, to be eligible to transfer post 9/11 GI Bill benefits, a Soldier must provide evidence showing he attempted to transfer his benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits.

	a.  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 family member(s) on or after 1 August 2009.

	b.  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.  

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child(ren) must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on the date of their transfer request.  

	e.  A Soldier must have no adverse action (flag) and have an honorable discharge to transfer benefits.

	f.  A Soldier should not be granted relief based on unawareness of law, program rules, or procedures unless he/she left the service during the implementation phase (first 90 days) of the program.  

	g.  A Soldier must initially request benefits on the Department of Defense's TEB online database which was operational on 29 June 2009, along with other required steps.  

	h.  The VA is restricted to pay for education benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.

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 that went into effect on 1 August 2009.

4.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  The general eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service.

	b.  Service members also must have served on active duty in the Regular Army; as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302 and 12304 (orders in support of contingency operations, i.e., mobilization); and must have received an honorable discharge at the conclusion of active service.  

5.  The program guidance stipulates if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013, and agrees to serve the additional specified period of service, the service member is entitled to transfer benefits to his dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  The applicant was discharged effective 18 November 2011.  He would have been eligible to transfer benefits had he done so at the time of medical discharge.  He would not have incurred an additional service obligation based being discharged as a result of meeting medical retention standards.

3.  The program was implemented on 1 August 2009.  A Soldier should not be granted relief based on unawareness of law, program rules, or procedures unless he/she left the service during the implementation phase (first 90 days) of the program.

4.  The applicant neither met the eligibility criteria nor provided sufficient evidence to warrant granting his requested relief.  In view of the foregoing, his request should be denied.



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)                                         AR20120014534





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ABCMR Record of Proceedings (cont)                                         AR20120014534



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