BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120015129 


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 elected to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
 
2.  The applicant states:

	a.  he did not realize he had to transfer his education benefits to his children before he retired; this was never explained to him.

	b.  he earned his benefits and believes that had he been better informed he would have transferred them. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Active duty orders
* Amendment orders
* Discharge orders
* Reassignment orders
* Notification of Eligibility for Retired Pay at Age 60

CONSIDERATION OF EVIDENCE:

1.  Having completed over 19 years in the U.S. Army Reserve (USAR), the applicant was ordered to active duty on 17 January 2008 and was released from active duty on 11 March 2009.  He was ordered to active duty again, on 2 March 2011, and was released from active duty on 19 May 2012.  He was assigned to the Retired Reserve effective 15 July 2012.  

2.  During the processing of this case an advisory opinion was obtained from the Chief, Education and Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, who states, in summary:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  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 on or after 1 August 2009.

	b.  A Soldier must be currently 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 service was 8 September 2010.  He would have been eligible to transfer the benefits if he transferred them before he left the service.  

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse or at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 26 years of service upon his transfer to the Retired Reserve, so he was eligible to transfer benefits to either his spouse or children as long as the dependents were enrolled in Defense Eligibility Enrollment Reporting System (DEERS) (if he completed the request before leaving military service).

	d.  A Soldier may only transfer benefits to eligible dependents.  He had three  eligible dependents enrolled in the DEERS.  He did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer benefits prior to leaving service.

	e.  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 transferred his benefits prior to leaving military service he would not have incurred an additional service obligation.

	f.  A Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant's record.  

	g.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left military 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.  His last day in military service was 8 September 2010 which was not within 90 days after the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the DOD 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 DVA access.  The respective dependent must then submit an application for DVA educational benefits 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.

	i.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a Soldier leaves 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.  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 DVA.  No evidence was provided by the applicant to show his dependents made a previous claim to the DVA.  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 the DVA (verified by DVA upon approval).

3.  The advisory official does not recommend administrative relief for the applicant because he did not provide evidence showing he attempted to transfer benefits prior to leaving military service and/or he was given false information by a reliable source about the rules for transferring educational benefits.

4.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.  

5.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 for 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not aware of the requirement to transfer benefits prior to leaving service.  However, the Army, 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.  

2.  His contention was carefully considered.  However, there is no evidence of record and he provided no evidence which shows he transferred his Post 9/11 GI Bill benefits to his dependents prior to his transfer to the Retired Reserve on 15 July 2012.  Regrettably, there is no basis for granting the requested relief. 

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)                                         AR20120011637



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ABCMR Record of Proceedings (cont)                                         AR20120015129



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