BOARD DATE: 9 October 2012 DOCKET NUMBER: AR20120007298 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 as an exception to policy the Transfer of Education Benefits (TEB) under the provisions of the Post-9/11 GI Bill to his daughter. 2. The applicant states he retired on 26 December 2011 but he was never informed that he had to transfer the benefit before he retired. He spoke with an official at the Department of Veterans Affairs (VA) who told him he could transfer the benefit as long as the family member was enrolled in the Defense Eligibility Enrollment Reporting System (DEERS). 3. The applicant provides a DA Form 5893 (Soldier's Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) Counseling Checklist). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 27 March 1989. He served through multiple reenlistments in a variety of stateside or overseas assignments, including periods of active duty mobilization, and he attained the rank/grade of sergeant first class (SFC)/E-7. 2. On 30 April 2009, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 3. He appears to have been discharged or retired from the USAR on 26 December 2011 for medical reasons. His records do not contain a retirement or discharge order but he provides an MEB/PEB counseling checklist that shows he was being counseled for medical unfitness. 4. An advisory opinion was obtained on 31 May 2012 from the Education and Incentives Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY, in the processing of this case. The HRC official recommended disapproval of the applicant's request because he did not provide evidence showing he attempted to transfer prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits. The MEB/PEB counseling checklist, dated 31 October 2011, is not used for counseling Soldiers concerning their education benefits. The applicant was still in the Selected Reserve until 26 December 2011 and he was eligible to submit a valid request during that timeframe. He did not do so while in the Selected Reserve. a. Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, section 3020 of 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. 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 dependents (on or after 1 August 2009). The applicant's last day in service was 26 December 2011. He would have been eligible to transfer the benefit if he transferred before he left the service. c. 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. The applicant had more than 24 years of service upon retirement; therefore, he was eligible to transfer the benefit to either his spouse or child if he had completed the request before leaving the military. d. A Soldier may only transfer to eligible dependents. To be considered an eligible dependent the spouse or child must be enrolled in 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 state are not eligible for the benefit. Once the benefits are transferred, children may use the benefit up to the age of 26. The Transfer of Education (TEB) online database shows the applicant had two eligible dependents enrolled in DEERS. He was eligible to transfer to Tamara (spouse) and Gracyn (child). He did not complete the requirements in the TEB online database because he claims he was unaware of the requirements to do so prior to leaving the military. 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 had transferred his benefits to his two eligible dependents prior to leaving military service he would have incurred an additional service obligation of zero years 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 the benefits. There is no evidence of an adverse action in his record. g. A Soldier 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 the 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. The applicant's last day in the service was 26 December 2011 which was not within 90 days after the program’s implementation. h. A Soldier must initially request to transfer benefits on the DOD's 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 dependent must then submit an application for VA education benefits, VA-Form 22-1990e, 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 number of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least one 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. 5. The applicant was provided a copy of the above advisory opinion and he submitted a rebuttal on 11 June 2012 in which he stated: * He did not receive any briefing or notification regarding the transfer of education benefits * He was under a firm understanding that nothing was needed on his part * As shown on the statement he received from the unit's Staff Administrative Assistant, he was not afforded the opportunity to meet with a retention specialist during outprocessing 6. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible member is 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 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. 7. 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. 8. 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 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. There is insufficient evidence that shows the applicant submitted a request to transfer education benefits to his family member(s) while in an active status. There is nothing in his records confirming that he submitted a request to transfer the benefits on the TEB website. 2. The DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly a year after the program was implemented. 3. The applicant's service and his sincerity are not in question. However, the applicant was on active duty when the program was implemented in August 2009 and he remained on active duty over 2 1/2 years after the program was implemented; therefore, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner. There is no evidence he exercised due diligence. There is neither an error nor an injustice in the applicant's transfer of benefits processing. 4. In view of the foregoing, there is an insufficient evidentiary 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) AR20120007298 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120007298 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1