IN THE CASE OF: BOARD DATE: 3 February 2011 DOCKET NUMBER: AR20100014193 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 approval of Transfer of Educational Benefits (TEB), under the Post-9/11 GI Bill to his dependents. 2. He states he officially retired on 1 October 2009 and started terminal leave in July 2009. Prior to retirement he questioned a representative at the Department of Veterans Affairs (VA) and an education representative about the requirements concerning the transfer of his educational benefits to his dependents. He maintains he was told, on several occasions, that there was no action required until his dependents were ready to use the benefits. He added that in November 2009 he found out he should have filled out paperwork to transfer his benefits to his dependents. He states that he contacted the Office of the Deputy Chief of Staff, G-1 (G-1) and he was given approval in December 2009 to transfer his benefits. Additionally, he was told to contact the G-1 office again in January 2010 to complete the process. He maintains he was strung along by G-1 until April 2010 then he was notified that the information he received concerning the TEB approval was incorrect and he would now have to apply for approval through the Army Board for Correction of Military Records (ABCMR). 3. He provides the following: * DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Orders 020-0001, dated 20 January 2009 * DA Form 31 (Request and Authorization for Leave), dated 8 April 2009 * Numerous e-mail messages CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 31 January 1984. He was discharged on 2 June 1998 to accept commission as an Army officer. On 3 June 1998, he was appointed as a Reserve Commissioned Officer in the rank of second lieutenant and entered active duty that date. He was credited with 25 years and 8 months of active service and he was honorably retired in the rank of major on 30 September 2009. 2. His DA Form 31 shows he was approved to take 91 days of terminal leave from 2 July to 30 September 2009. 3. A synopsis of the e-mail traffic between the applicant and the G-1 concerning TEB under the Post-9/11 GI Bill is a follows: a. On 20 November 2009, he contacted G-1 in reference to a policy that supposedly stated he could not transfer his 9/11 GI Bill due to the fact that he retired on 1 October 2009, but did not transfer his benefits before he retired. He said he could not find the policy but was quoted the policy from the education office. He said he did much research on this prior to starting his terminal leave and nothing he read or was told by the education office indicated he had to transfer his benefits prior to his retirement date. b. The G-1 representative responded to the applicant's e-mail by stating the applicant had to be a member of the Armed Forces on the date he submitted the request to transfer his benefits. He stated once the applicant retired he was no longer a member of the Armed Forces. He further stated the policy is based on the legal requirements established by congress when they wrote the legislative language and the language is very specific; therefore, there is no exception to the rule. He asked the applicant if he had attempted to transfer benefits in the TEB website prior to his official retirement date. c. The applicant said while on terminal leave, he contacted the education center and the VA representative. He was told once he made up his mind to transfer the benefits to his dependents he needed to get in touch with the VA and fill out the paperwork. He said at no time did he receive a message nor did he read anything that stated he needed to complete the paperwork prior to his official retirement date, until now. d. The G-1 representative said since the applicant made a legitimate effort to transfer benefits, but received incorrect information, "we can go in and correct the error." He continued that the Department of Defense (DoD) has allowed them to correct legitimate errors; they just cannot do exceptions to policy. The representative said he needed information on his dependents and the amount he wanted transferred. e. On 23 November 2009, the applicant responded to G-1 by providing the information requested. f. The G-1 representative said since the transferred benefits would not be used until next fall DoD would not do the direct coordination with the VA to top load the transfer. The G-1 representative explained some updates to the TEB website and informed the applicant that he would be gone on 15 December 2009 and provided him with the name of two NCOs in his office to contact in early January to ask if they could top load his request. The G-1 representative told him to keep the e-mail as confirmation his request to transfer his benefits had been approved, "not as an exception, rather to correct an error that occurred prior to your retirement." g. On 14 January 2010, the applicant contacted the two NCOs and sent them copies of the e-mail traffic between himself and the former G-1 representative, although they had been provided courtesy copies via e-mail previously. h. On 15 January 2010, one of the NCOs from the G-1 office contacted the applicant and explained the webmaster for the TEB website was working on an error associated with the applicant's record. The error was scheduled to be fixed in March 2010. The G-1 NCO said he wanted to ensure the applicant's approval would be visible at VA at the time his dependents submitted their request for benefits. i. On 19 January 2010, the applicant responded that the earliest his dependent would need the benefits would be in May. Therefore, if his records and paperwork were good to go in March, his dependent would be ready by May. j. On 6 April 2010, the applicant contacted the G-1 NCO concerning TEB. k. On 12 April 2010, the G-1 NCO stated that since their last contact, a new process was established that requires Soldiers who were unable to transfer their entitlements before separation or retirement to apply through the ABCMR. l. On 13 April 2010, the applicant questioned the process and the 8 to 10 months required to receive a response. He reiterated the same argument in his response to the G-1 NCO as in his application to the Board. 4. An advisory opinion was obtained on 21 October 2010 in the processing of this case. An official in the G-1 stated the applicant is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program. Army and DoD policy require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. These policies are based on requirements established in law. The Army does not have the legal authority to grant an exception to policy that would allow those who retired or separated from the Army to transfer Post-9/11 GI Bill benefits. The official recommended disapproval of the applicant's request and stated: a. Army and DoD policy require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. b. Those policies are based on requirements established in law. Consequently, the Army does not have the legal authority to grant an exception to policy. c. This opinion is based on the legal authority outlined in section 3319(b) of Public Law 110-252. Specific Congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status. 5. The applicant was provided a copy of this advisory opinion and responded with a rebuttal on 26 October 2010. He stated the denial of his request from the G-1 is the same office that originally approved his case in November 2009. He reiterated the information contained on his application to the Board and provided the e-mail traffic between the G-1 and himself to substantiate his claim. He requested the Board reject the advisory opinion rendered by the G-1 due to errors in the TEB system. 6. On 22 June 2009, the DoD guidance established the criteria for eligibility and transfer of unused education 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: 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. 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. c. Is or becomes retirement eligible during the period from August 1, 2009, through August 1, 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. d. For those individuals who have an approved retirement date after 1 August 2009, and before 1 July 2010, no additional service is required. 7. The policy further states the secretaries of the Military Departments will: a. 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. b. Maintain records for individuals who receive supplemental educational assistance under section 3316 of Reference (a). Provide those records to the Defense Manpower Data Center and the VA. 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 retired on or before 1 August 2009 were, 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. 9. The U.S. Supreme Court's opinion in United States v. Larionoff, 431 US 864 (1977) states, in pertinent part: a. A service member's entitlement to military pay is governed by statute rather than ordinary contract principles. b. In the absence of specific statutory authority, the Government is not liable for negligent or erroneous acts of its agents. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his records should be corrected to allow him an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his dependents. 2. The evidence of record shows he was fully eligible to transfer his education benefits under the TEB prior to his retirement on 30 September 2009, but did not do so. He contends his failure to transfer his benefits was based on wrong information provided to him by representatives from the VA and the education office. Additionally, he maintains he received approval in November 2009 from the G-1 representative to transfer his benefits to his dependents. 3. It appears the G-1 representative's approval of the applicant's request to transfer his Post 9/11 GI benefits was based on the representative's belief that the applicant had made a legitimate effort to transfer those benefits. However, there is no evidence and he has not provided any to show that prior to his retirement, he did, in fact, attempt to transfer his benefits to his dependents. He argues he was given the wrong information and there was no information indicating he needed to complete his paperwork to transfer his benefits prior to retirement. 4. 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. A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent: (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible. Since the applicant did not transfer his benefits before he retired on 31 October 2009, he is ineligible to transfer benefits. 5. Therefore, his argument that his request should be approved based on the G-1 representative's approval in November 2009 is not sufficient evidence to justify approval. The law requires a member to be in an active status at the time he/she requests the transfer. He was not in an active status at the time of his request. Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his dependents. 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) AR20100014193 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100014193 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1