IN THE CASE OF: BOARD DATE: 1 May 2012 DOCKET NUMBER: AR20110021661 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, an exception to policy to transfer his educational benefits to eligible dependents under the Transferring Educational Benefits (TEB) provisions of the Post-9/11 GI Bill. 2. The applicant states he would like to transfer educational benefits to his children. He was treated unfairly prior to retiring on 1 October 2009 since the Army did not properly inform him on how to transfer his Post-9/11 GI Bill benefits to his family members. Since the program to transfer the benefits was still being implemented as he prepared to start terminal leave he was never informed that he had to make an election while still serving on active duty. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Post-9/11 GI Bill transferability information. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show he enlisted in the Regular Army on 30 September 1989 and he was honorably retired on 30 September 2009. He was credited with completing 21 years and 1 day of net active service and he had no lost time. 2. In an advisory opinion, dated 29 December 2011, the Chief, Enlisted Incentives Branch, U.S. Army Human Resources Command (HRC), recommended administrative relief for the applicant as stated below. a. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, 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. Based on the following details administrative relief was recommended for the applicant because he retired within 90 days of implementation of the program. b. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service. c. 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/her dependent (on or after 1 August 2009). The applicant's last day in military service was 30 September 2009. He would have been eligible to transfer the benefits if he transferred them before he left the service. d. 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 had more than 21 years of service upon retirement, so he was eligible to transfer benefits to either his spouse or children if he completed the request before leaving military service. e. A Soldier may only transfer benefits to eligible dependents. To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. The TEB online database shows the applicant had four eligible dependents enrolled in DEERS. He was eligible to transfer benefits to his spouse and children. He did not complete the requirements in the TEB online database because he claims he was not aware of the requirements to transfer benefits prior to leaving the service. f. A Solider 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. g. 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. h. 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 30 September 2009 which was within 90 days after the program's implementation. i. 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 VA access. The respective dependent must then submit an application for VA educational benefits, the 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. The TEB website shows no action was taken by the applicant to transfer any benefits. j. Changes to the number of months allocated to dependents can be made at anytime, to include once they leave military service, provided the service member allocates at least 1 month of benefits prior to separation. The TEB website shows no action was taken by the applicant to transfer any benefits. k. 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 that shows his dependents made a previous claim to the VA. If he is granted relief, the beginning date for his dependents to use the transfer of benefits will be the date granted unless previous specific claims were submitted to the VA (verified by the VA upon approval). 3. On 7 January 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal. He did not respond. 4. On 22 June 2009, the Department of Defense 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 Department of Defense) 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 service or 20 qualifying years of Reserve service. 5. 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. 6. 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 contends his records should be corrected to allow him to transfer his educational benefits to eligible dependents under the TEB provision of the Post-9/11 GI Bill as an exception to policy. 2. The evidence of record shows he was honorably retired on 30 September 2009 after completing more than 21 years of service. HRC opined that although significant measures were taken to disseminate the transferability of unused Post-9/11 GI Bill benefits, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service. 3. The applicant's last day in the service was 30 September 2009 which was within 90 days of implementation of the program. The applicant contends he was not aware of the requirement to transfer his educational benefits prior to retirement; therefore, none of the required steps to transfer his benefits were taken. Based on the foregoing and as a matter of equity, he is eligible to transfer his benefits to either his spouse or children under the TEB provisions of the Post-9/11 GI Bill. BOARD VOTE: ____X____ ___X_____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his dependents prior to retirement, provided all other program eligibility criteria are met. _____________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) AR20110021661 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021661 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1