BOARD DATE: 20 September 2012 DOCKET NUMBER: AR20120005604 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 an exception to policy to transfer educational benefits to his family members under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: * when the TEB program first started, it was offered to Soldiers reenlisting for an indefinite status but not to those who had already reenlisted for an indefinite status or retiring * he was unaware of this fact and he chose to retire on 31 May 2009 * he is aware that this program is not available to those who retired prior to 1 August 2009; however, had he known the rules, he would have extended his voluntary retirement date * he served honorably for 23 years and this program can help his family 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 20 November 1985 and he held military occupational specialties 11B (Infantryman) and 79S (career Counselor). He served through a variety of stateside or overseas assignments and he attained the rank/grade of master sergeant (MSG)/E-8. 2. He was retired by reason of sufficient service for retirement on 31 May 2009 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 June 2009. He completed 23 years, 6 months, and 11 days of creditable active service. 3. During the processing of this case, on 4 May 2012, an advisory opinion was obtained from an official at the Enlisted Professional Development Branch, Deputy Chief of Staff, G-1. The advisory official recommended disapproval of the applicant's request because the applicant was not a member of the service on or after 1 August 2009. Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve. This official also stated: a. 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 family members (on or after 1 August 2009). The applicant's last day in military service was 31 May 2009. He is not eligible to transfer his post-9/11 benefits. b. 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 to eligible children. The applicant in this case had more than 23 years of service upon his retirement, but he was not eligible to transfer the benefit because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member 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 26. The TEB online database shows the applicant had no eligible family members to transfer this benefit because he was not in the service on or after 1 August 2009; this incentive was not available to him because this program was not yet implemented. d. 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 had been in the service on or after 1 August 2009 he would not have incurred an additional service obligation. e. 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 the applicant's record. He received an honorable discharge. f. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she 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. The applicant's last day in the service was 31 May 2009 which was not within 90 days after the program's implementation. g. A Soldier must initially request to transfer benefits on the DOD TEB online database. The TEB online database was operational 29 June 2009. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access. The respective family member 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 the benefits. h. Changes to the amount of months allocated to family members can be made at anytime, to include once a member 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. 4. The applicant was provided with a copy of this advisory opinion 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 from 1 August 2009 through 1 August 2012. 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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 7. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012. DISCUSSION AND CONCLUSIONS: 1. The applicant served on active duty from 20 November 1985 to 31 May 2009. The law requires a member to be in an active status at the time he/she requests the transfer. The applicant was not in an active status at the time this program was implemented. Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members. 2. The applicant's service and his sincerity are not in question. However, the requirements of this program are set in the law and any changes to this law are not within the purview of this Board. There is neither an error nor an injustice in his case and as such, he is not entitled to the requested relief. 3. In view of the foregoing, there is no basis for granting the applicant's 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) AR20120005604 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120005604 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1