IN THE CASE OF: BOARD DATE: 3 May 2012 DOCKET NUMBER: AR20110022629 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 transfer of his educational benefits to his spouse under the Post-9/11 GI Bill transferability program. 2. The applicant states he was not adequately notified of the opportunity to transfer benefits until it was too late. 3. The applicant provides: * article from the Army Times * retirement orders CONSIDERATION OF EVIDENCE: 1. The applicant was born on 18 January 1950. After completing 27 qualifying years of service in the U.S. Army Reserve (USAR), he was reassigned to the Retired Reserve effective 1 July 2006. He was placed on the Retired List effective 18 January 2010 in the rank of lieutenant colonel. 2. He provides an article from the Army Times which states some Army and Air Force retirees got a second chance to share GI Bill benefits with family members after convincing an administrative board that they were not adequately notified of the opportunity before it was too late. 3. During the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 10 January 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 the service was 18 January 2010. Prior to this time, he was transferred from the USAR (a Selected Reserve status) to the Retired Reserve on 1 July 2006. While in the Retired Reserve, he could have voluntarily transferred to a Selected Reserve status or mobilized to active duty on or after 1 August 2009 which would have placed him in a window where he would have become eligible to transfer the benefits. He would have been eligible to transfer the benefits if he had been in a Selected Reserve status or on active duty during the period 1 August 2009 to 17 January 2010 before he left military 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 benefits to eligible children. He had more than 27 years of service upon his retirement so he was eligible to transfer benefits to his dependents (if he completed the request before leaving military service). d. A Soldier may only transfer benefits to eligible dependents. He had five eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS). The Transfer of Education Benefits (TEB) online database shows he had one eligible dependent enrolled in DEERS during the time frame he would have been eligible if in Selected Reserve or active duty status. He and his former wife married on 15 October “1951” and divorced on 14 December 2010. He since remarried on 27 May 2011. His current spouse is ineligible to receive transferred Post-9/11 GI Bill benefits because she was not his dependent during the time frame he would have been eligible to transfer the benefits. No children are listed in DEERS as eligible for the transferred Post-9/11 GI Bill benefits. He did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer benefits prior to leaving military 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. His former spouse would have been eligible if he had transferred benefits while in a Selected Reserve status or on active duty prior to retiring on 18 January 2010; however, he never transferred benefits to his former spouse. He could not transfer benefits to his current spouse because she only became his dependent after he left military service. 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 the service during the implementation phase (first 90 days) of the program. His last day in the service was 17 January 2010, which was not 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 you leave 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 that 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 the VA upon approval). 4. 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 serviced and/or he was given false information by a reliable source about the rules for transferring educational benefits. 5. 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. 6. 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. 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, 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's request to transfer his educational benefits to his spouse was carefully considered. However, his current spouse is ineligible to receive transferred Post-9/11 GI Bill benefits because she was not his dependent during the time frame he would have been eligible to transfer the benefits. 2. The evidence shows his last day of military service was 17 January 2010. Since he was not on active duty or a member of the Selected Reserve during the period 1 August 2009 to 17 January 2010, he is not eligible to transfer benefits under the program to his dependents. 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 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) AR20110022629 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110022629 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1