IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100011813 


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

2.  The applicant states he was never informed of the requirement to be serving on active duty in order to transfer his earned Department of Veterans Affairs (VA) benefits to his eligible dependents.  He was on approved retirement transition leave from 19 June 2009 to 31 October 2009 when the final guidance was published which included the requirement to be on active duty to transfer benefits under the Post-9/11 GI Bill, chapter 33.  He was never briefed or made aware of this requirement during his transition or out-processing for retirement by anyone. 
He found out about this requirement when he called the VA to determine the procedures for transferring benefits and was told to go to the website and apply.  He served as an officer in the Army since 1976 and never used his VA benefits.  He doesn't think there was any intentional neglect in this case, just timing and an oversight with the implementation of a new program.

3.  The applicant provides copies of his:

* orders, dated 1 June 2009, with amendments, for retirement
* DA Form 31 (Request and Authority for Leave) for the period 19 June 2009 to 8 July 2009
* DA Form 137-2 (Unit Clearance Form) for his orders, dated 1 June 2009
* DA Form 31 for the period 23 July 2009 to 31 October 2009
* DD Form 214 (Certificate of Release or Discharge From Active Duty) with a separation date of 31 October 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was commissioned as a second lieutenant in the U.S. Army Reserve on 17 December 1976.  On 9 January 1992, he was commissioned as a major in the Regular Army Aviation Branch where he served until his retirement.

2.  The undated DA Form 31 for the period 19 June 2009 to 8 July 2009 shows the applicant requested permissive TDY (temporary duty) during this period.

3.  The undated DA Form 31 for the period 23 July 2009 to 31 October 2009 shows the applicant requested transition leave during this period.

4.  The applicant's DA Form 137-2 shows he cleared the installation from 
21-30 October 2009.

5.  On 31 October 2009, the applicant was retired and he was placed on the Retired List on 1 November 2009 in the grade of colonel/pay grade O-6.

6.  On 6 October 2010, an advisory opinion was received from the Department of the Army Office of the Deputy Chief of Staff, G-1.  The G-1 stated the applicant is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program. 
Army and Department of Defense (DOD) policies require a Soldier to be on active duty or a member of the Selected Reserve of the U.S. Army in order to transfer benefits.  These policies are based on requirements established in law.  Consequently, the Army does not have the legal authority to grant an exception to policy allowing those who are retired or otherwise separated from the Army to transfer Post-9/11 GI Bill benefits.  The G-1 also stated that DOD and VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on Post-9/11 GI Bill and subsequent transfer of entitlement were published well in advance of its implementation date of 1 August 2009.

7.  The applicant was provided a copy of this advisory and responded with a rebuttal on 23 October 2009.  He states the massive public campaign generating major communications through military, public, and social media venues was vague and general at best.  He states that during his 34 years of commissioned service he witnessed that the Department of the Army has all the best intentions, but sometimes misses its goal when it comes to implementation.  He states this important program and benefit should not have been left up to a media campaign and unofficial sources to implement.

8.  The applicant states he had an approved retirement date of 31 October 2009 and went on approved transition leave on 19 June all the way through to his retirement date.  The implementation directive had not been finalized or published at the time nor did he know when or if one would be published.

9.  Public Law 110–252, dated 30 June 2008, authorized the Post-9/11 GI Bill which became effective 1 August 2009.  Section 3319 of this law states that an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.

10.  On 22 June 2009, 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 Component 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 he should be allowed an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.  He contends the Army has all the best intentions, but sometimes misses its goal when it comes to the implementation.  He contends this important program and benefit should not have been left up to a media campaign and unofficial sources to implement.  He contends he went on approved transition leave on 19 June all the way through his retirement date of 31 October 2009.

2.  A DA Form 31 shows the applicant commenced permissive TDY on 19 June 2009 and was to return on 8 July 2009.  A second DA Form 31 shows his transition leave did not start until 23 July 2009.

3.  DOD established the criteria for the TEB provision of Post-9-11 on 22 June 2009.  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.  Therefore, this information would have been available to the applicant upon his return from his permissive TDY and before he departed on his transition leave.

4.  The applicant's DA Form 137-2 shows he returned from his transition leave to clear his unit during the period 22-30 October 2009.

5.  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.

6.  Nevertheless, 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.

7.  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) has 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.  Since the applicant retired on 31 October 2009, he is ineligible to transfer benefits. 

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 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)                                         AR20100011813



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ABCMR Record of Proceedings (cont)                                         AR20100011813



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