IN THE CASE OF:	  

		BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120018197 


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 the ability to transfer his Post-9/11 GI Bill to his children or spouse.

2.  The applicant states:

	a.  He retired on 1 October 2008 with 25 years of service believing that he would be able to transfer his GI Bill to his daughter beginning on 1 August 2009.  Up to that point, the policy related to this option had not been released and he was only aware that it could not be transferred before 1 August 2009.  He was quite dismayed to learn that he had to be on active duty at the time of transferring in order to do so.

   b.  He was never told of any of this at his retirement briefing and he would have never retired 9 months shy of this opportunity with one child already in college and another joining her in 2010.  He recently learned that there had been an exception to policy to allow those who retired between August 2009 and December 2009 to apply for transferability because service members may not have been aware of the provision that they had to be on active duty to apply, which is exactly what happened in his case.
   
   c.  Again, no one ever once told him that he qualified for the GI Bill, nor was it written, that the exception was he had to be on active duty on 1 August 2009 to transfer his benefit.  It is his understanding that the guidance on this particular                                                                                                                                issue was not released until June 2009, so neither he nor any of the retirement benefits counselors could have known.
   
   d.  The main draw of the new GI Bill from the day it was announced had been transferability and when it was originally announced, all they knew was that retirement eligible individuals were eligible if they were on active duty on 1 August 2009.  This transferability rule was clear at the time.  He can't imagine anyone with children planning to go to college retiring in 2008 or early 2009.  It was just not made clear and it is an injustice to anyone who retired between 1 August 2008 and 31 July 2009.

3.  The applicant provides copies of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) and reattachment separation orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows he enlisted in the U.S. Army Reserve (USAR) on 21 March 1989.  He continued to serve in the USAR through several reenlistments. 

2.  On 3 November 2005, he was issued a 20-Year Letter.  He was honorably separated from the USAR on 30 September 2008 and was transferred to the Retired Reserve on 1 October 2008.

3.  In an advisory opinion, dated 20 November 2012, the Section Chief, Finance and Incentives Team, U.S. Army Human Resources Command (HRC), recommended disapproval of the applicant’s request.  The HRC official stated:

   a.  Public Law 110-252 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.  Based on the following details, HRC did not recommend administrative relief for the applicant because he was not a member of the service on or after 1 August 2009, which is a requirements established by law.

   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 or her dependents on or after 1 August 2009.  The applicant’s last day in service was 30 September 2008.  He is not eligible to transfer his Post 9/11 GI Bill benefits.

   c.  A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least ten years of eligible service to            transfer to eligible children.  The applicant had 25 years of service upon his retirement, but he was not eligible to transfer to either spouse or his children because the law required Soldiers to be in the service on or after 1 August 2009.

   d.  A Soldier may only transfer 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 the state are not eligible for the benefit.  Once the benefits are transferred, children may use the benefit up to the age of 25.  The Transfer of Education Benefits (TEB) online database shows the applicant had three eligible dependents enrolled in DEERS.  If he had met all the prerequisites (including being a member of the Selected Reserve or on active duty after 1 August 2009) he would have been eligible to transfer to his spouse and two children.  He could not complete the requirements in the PEB online database before he left the service because the incentive was not available to him.

   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.  If he would have been in the service on 1 August 2009, he would have incurred an additional service obligation of zero years, but he was not eligible because he 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 his record.  He 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 education benefits.  His last day in the service was 30 September 2008, which was not was before the program's implementation.

   h.  A Solider must initially request to transfer benefits on the DoD’s 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 by VA access.  The respective dependent must then submit an application for VA education 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 zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefit because the program was not yet available.  

4.  The advisory opinion was provided to the applicant for acknowledgement/
rebuttal on 10 December 2012.  He did not respond.

5.  The Post-9/11 GI Bill policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active service individuals 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 that his records should be corrected to allow him to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill.

2.  The evidence of record shows he was honorably separated from the USAR on 30 September 2008 and transferred to the Retired Reserve on 1 October 2008.  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 his last day in military service was 30 September 2008 and there is no evidence he was a member of the Selected Reserve on or after 1 August 2009, he was not eligible to transfer educational benefits to either his spouse or her children.  There is no evidence of record and he provided none to show he met one or more of the requirements established by law for transfer of educational benefits.

3.  The applicant is commended for completion of his honorable service; unfortunately, he left the service prior to 1 August 2009.  Therefore, this incentive was not available to him at the time of his separation and it is still not available to him 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 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)                                         AR20120018197



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ABCMR Record of Proceedings (cont)                                         AR20120018197



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