BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100011842 


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, through his Member of Congress, an exception to policy under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to transfer education benefits to his dependents.

2.  The applicant states no Army policy existed at the time he transitioned from the Army and he did not know or was not informed of the requirements to accomplish this transfer while on active duty.  He completed 24 years of active service and recently learned he is ineligible to transfer education benefits to his family members because he is no longer on active duty.  He has sought help through various levels within the Army to resolve this issue that not only affected him, but several others who retired around the same time the Army initiated and/or implemented this program.  He paid for the Montgomery GI Bill (MGIB) in 1994 and met the requirements for the transfer of benefits with no additional service required of him.  He adds that:

	a.  The Army and Department of Veterans Affairs did not take sufficient steps to ensure members were aware of key details regarding this program.  He and others who retired after the bill went into effect lost the option to transfer benefits because they were unaware they had to complete the transfer prior to retirement. 
There was a short time span between the time the policy was established and the time Soldiers needed to take action, compounded by a lack of clear communication.

	b.  The Army message that addressed the transfer of benefits made no mention of the need to transfer benefits while on active duty.  Additionally, the January 2010 retiree newsletter makes no mention of transferring benefits prior to retirement.  The Department of Defense (DOD) website regarding the Post 9/11 GI Bill makes no mention of this requirement either.

	c.  His issue is that of timing.  His retirement was effective 1 November 2009. 
He started clearing and out-processing on 24 June 2009.  He received his education center retirement briefing on 29 June 2009.  He was in a permissive temporary duty (PTDY) status from 1 to 30 July 2009.  He attended the retirement ceremony on 31 July 2009.  He was again in a PTDY status on 3 August 2009, conducted his final out-processing on 4 August 2009, and was placed on transition leave from 5 August 2009 through 31 October 2009.

	d.  His second issue is that no policy existed for this program.  The education center provided no guidance regarding this issue because the DOD Directive was signed on 22 June 2009 and it remains unclear when the Army took the DOD guidance and transmitted it to the field.  The Army failed to notify him and countless others in his situation.

	e.  By the time he figured out the problem, he was no longer on active duty.  He then began making contact with various agencies to rectify the problem.  Everyone pointed to the Army G-1 office.  But the Army G-1 office was unresponsive as he was no longer on active duty.

3.  The applicant provides:

* DA Form 137-2 (Installation Clearance Record)
* DA Forms 31 (Request and Authority for Leave) for various periods of PTDY in July and August 2009 and transition leave August through October 2009
* Officer Record Brief
* Electronic DA Form 669 (Education Record)
* retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* letter from the Department of Veterans Affairs

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a U.S. Army Reserve second lieutenant and executed an oath of office on 24 July 1985.  He entered active duty on 26 September 1985, served in various command and staff positions within and outside the continental United States, and attained the rank of colonel.

2.  His records show he underwent a pre-separation briefing on 31 December 2008 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  He was honorably retired on 31 October 2009 and he was placed on the Retired List in his retired rank of colonel on 1 November 2009.  He was credited with 24 years, 1 month, and 5 days of creditable active service.

4.  An advisory opinion was obtained on 28 October 2010 in the processing of this case.  An official in the Office of the Deputy Chief of Staff, 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 legal authority outlined in section 3319(b) of Public Law 110-252.

5.  The applicant was provided with a copy of this advisory opinion and responded with a rebuttal on 17 November 2010 wherein he stated that he disagreed with the advisory opinion and based on the facts, logic, and chronology, multiple administrative errors occurred at every level of the Army beginning in June 2009 and continued through April 2010, the date he submitted his request to this Board.  He adds that he is not questioning the legal authority or the law, but argues the issue is that of timing and chronology.  He provides copies of various email exchanges with several military and civilian officials within the Department of the Army in an attempt to highlight the issue as mainly a gap between the initiation of policy and its execution.  His recommends that the Board reject the G-1's advisory opinion as it misses critical elements and facts related to his case.  If he had known and was made aware of the proper procedure by the Army to transfer his education benefits to his family members, he would have immediately done so.  Thus, the events that transpired between the date the information was released, his final out-processing date, and his retirement date should be sufficient to warrant granting him the requested relief.

6.  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 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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

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 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.  He contends there was little time between the time DOD and the Army established the policy and the time individuals had to take action.  Coupled with his preparation for retirement, out-processing appointments, and permissive/
transition leave, this prevented him from receiving the appropriate information regarding this program.

3.  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.

4.  DOD, Department of Veterans Affairs, 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 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)                                         AR20100011842



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ABCMR Record of Proceedings (cont)                                         AR20100011842



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