IN THE CASE OF: BOARD DATE: 25 September 2012 DOCKET NUMBER: AR20120004887 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, in effect: a. during out-processing he was not well informed of what he needed to do to convert his educational benefits to his dependents; and b. based on the information presented to him, by the separation specialist servicing him, his education benefits were to be transferred to his children at the time of separation. 3. The applicant provides: * An education benefits counseling statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. After completing over 20 years of creditable active service, the applicant retired from active duty on 30 April 2010 in the rank of staff sergeant. 2. During the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, dated 16 April 2012, 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. 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 30 April 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 20 years of service upon his retirement, so he was eligible to transfer benefits to either his spouse or children (if he completed the request before leaving military service). d. A Soldier may only transfer benefits to eligible dependents. He had two eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System. He did not complete the requirements in the Transfer of Education (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 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 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 he or she left military service during the implementation phase (first 90 days) of the program. His last day in military service was 30 April 2010 which was within 90 days after the program's implementation. h. A Soldier must initially request to transfer benefits on the Department of Defense (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 Department of Veterans Affairs (VA) access. The respective dependent must then submit an application for VA 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 VA. No evidence was provided by the applicant to show his dependents made a previous claim to the VA. 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 VA (verified by VA upon approval). 3. The advisory official does not recommend administrative relief for the applicant unless he can 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. On 25 April 2012, 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: The applicant's contentions were 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 retirement on 30 April 2010. 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: 1. 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. 2. The applicant and all others concerned should know this action in no way diminishes the sacrifices he made in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. _______ _ __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) AR20120004887 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120004887 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1