IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100011333 


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 education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse and two daughters.

2.  The applicant states he retired on 1 September 2009 with 28 years of active service.  He met the eligibility requirements for the Post-9/11 GI Bill and the requirements that would have enabled him to transfer his Post 9/11 benefits to his immediate family members.  He desired to transfer the benefit to his wife and two daughters but he did not do so before he retired.  He did not accomplish this transfer while on active duty because he was unaware of this requirement.  He thought he could do so after leaving the service.  The Army and Department of Veterans Affairs (DVA) did not take sufficient measures to inform him of the requirement to accomplish any transfer of benefits while on active duty.

3.  The applicant provides the following:

* Two self-authored letters, dated 20 March and 3 July 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 31 August 2009
* Two letters to his Member of Congress, dated 7 March and 16 May 2010
* Letter from the VA to his Member of Congress, dated 30 March 2010
* Letter from the VA to the applicant, dated 15 June 2009
* Letter from the Deputy Chief of Staff (DCS), G-1, to his Member of Congress, dated 17 May 2010
* 
Letter from the DCS, G-1 to his member of Congress, dated 20 May 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Regular Army second lieutenant, infantry, and he executed an oath of office on 27 May 1981.  He subsequently served in various command and staff positions, within and outside the continental United States.  He attained the rank of colonel (COL).

2.  His records show, in anticipation for his upcoming retirement, he underwent a pre-separation briefing on 17 April 2008 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).  Items checked "Yes" are mandatory for service members to receive further information or counseling, or attend additional workshops, briefings, classes, etc.

3.  On 15 June 2009, by letter and in response to his application for the Post-9/11 GI Bill, the VA notified him that a review of his records determined that on 1 August 2009 he could potentially become eligible for the MGIB (chapter 33) in the future.  He would be entitled to 100% of the benefits payable under the Post-9/11 GI Bill education benefits.  He was instructed to submit the "Member" copy of his DD Form 214 upon receipt of this form.  He was issued a Certificate of Eligibility (COE) for chapter 33 entitlements.

4.  He was honorably retired on 31 August 2009 and he was placed on the Retired List in his retired rank of COL on 1 September 2009.  He was credited with 28 years, 3 months, and 4 days of creditable active service.

5.  On 7 March 2010, by letter to his Member of Congress, the applicant sought assistance in transferring his Post-9/11 GI Bill benefits to his family members.  He contended that he met the requirements to transfer the benefits prior to his retirement but has since learned that he was no longer eligible because he was not on active duty.  He further contended that the program was not fully explained to him and that there was little time between the time DOD and the Services established the policy and the time individuals had to take action.  He further cites conflicting information in some of the official Army messages and/or news articles regarding the Post-9/11 GI Bill.

6.  On 20 March 2010, by letter to his Member of Congress, an official at the VA stated that members of the Armed Forces on 1 August 2009 may be offered the opportunity to transfer chapter 33 benefits to their family members.  DOD, not the VA, is responsible for determining eligibility for transfer of entitlements.  The law 

provides that an individual must have served at least 6 years in the Armed Forces and agrees to serve a minimum of 4 more years.  However, the law permits DOD to modify the number of additional years an individual must serve by regulation.  DOD regulations require an individual to be in the Selected Reserve or on active duty to be eligible for the transfer of chapter 33 benefits to their dependents.  The VA does not determine eligibility; it only administers payment of benefits.

7.  On 17 May 2010, by letter to the applicant, an official at the DCS, G-1 stated that 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.  requires at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agrees to serve at least 4 additional years from the date of request, unless retirement eligible.

The official also stated since the applicant was no longer on active duty, the Office of the DCS, G-1 could not assist him.

8.  On 20 May 2010, by letter to his Member of Congress, an official at the DCS, G-1 stated that DOD policy requires a Soldier to be on active duty or a member of the Selected Reserve of the Army in order to transfer benefits and that the policy is based on requirements established in law.  Public Law 110-252, section 3319(b), requires the individual to be a member of the Armed Forces.  Consequently, the Army does not have the legal authority to grant an exception to policy to allow those who retired or who were otherwise separated from the Army to transfer Post-9/11 GI Bill benefits.  Since the applicant retired on
1 September 2009, he was eligible until that time.

9.  In his self-authored letters, the applicant contends that he is seeking a retroactive transfer of the benefits because DOD, the Army, and the VA did not take sufficient steps to ensure he and others were aware of key details regarding the transfer of this benefit.  He was closely following developments of this program and when he learned that he met the eligibility and while still on active duty, he went to the website and saw his family members listed as eligible; however, he decided not to transfer benefits at that time for several reasons.  He saw an article requesting those individuals who did not wish to take advantage of the benefit during the fall 2009 semester to delay applying for benefits in order to allow the processing of requests for those individuals who were taking advantage 

of the benefit in the fall of 2009.  Since he was not planning to take immediate advantage of this benefit, he decided not to transfer the benefit at that time.  He concludes that he admits the information regarding the need to accomplish any transfer of benefits while still on active duty was available but an individual has to be diligent in searching for this information.  As an example, the DOD policy states the transfer can be accomplished "only while serving as a member of the Armed Forces."  This language, however, was not replicated in websites, documents, or press releases intended to provide information to individuals.

10.  On 22 June 2009, the DOD 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; 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 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.

11.  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.

12.  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 an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.

2.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the TEB prior to his retirement but did not do so.  By his own admission, he was aware of the requirements to do so while on active duty but decided not to.

3.  The law requires a member to be in an active status at the time he/she requests the transfer.  The applicant is not in an active status.  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.

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)                                         AR20100011333



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011333



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1