IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013329 


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 dependents.  He also requests a personal hearing.

2.  The applicant states he deployed to Iraq in April 2009 and upon redeployment, he immediately began reintegration training and then preparation for retirement.  He had less than 4 months between his return date and the date he went on transition leave 1 September 2009, to take care of outprocessing and/or medical appointments.  He was not briefed on Post-9/11 GI Bill benefits or its existence.  It was not until 2 week after he had retired he learned of this program and its benefits.  He began his research and was initially told he did not qualify because he had already retired.  However, after persistence, he was later told he was authorized to do so.  But he still cannot transfer the benefits because he had already retired.  He understands the program was initiated as a retention incentive and, in his case, since his retirement was between 1 August 2009 and 1 July 2010, there was no need for him to reenlist or extend.  He was automatically eligible since his retirement had already been approved and it fell between the two dates.  

3.  The applicant did not provide any additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in Regular Army on 14 March 1985 and held military occupational specialty 13B (Cannon Crewmember).  He served through multiple reenlistments, in various staff and leadership positions, within and outside continental United States, and attained the rank/grade of sergeant major (SGM)/E-9.  

2.  His records show, in anticipation for his upcoming retirement, he underwent a pre-separation briefing on 4 August 2009 wherein he checked the "No" 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.  He was honorably retired on 31 December 2009 and he was placed on the Retired List in his retired rank of SGM/E-9 on 1 January 2010.  He was credited with 24 years, 9 months, and 17 days of creditable active service.

4.  An advisory opinion was obtained on 6 October 2010 in the processing of this case.  An official at the Office of the Deputy Chief of Staff, G-1 stated that the applicant is eligible to receive benefits under the Post 9-11 GI Bill for himself as he meets the basic requirements for entitlements.  However, is ineligible to transfer those 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 18 October 2010 wherein he stated the information regarding this program was released in December 2008.  From December 2008 to April 2009, he was assigned to Basra, Iraq, with very limited connectivity with all American media or information.  During the months of May through July 2009, the remainder of the unit redeployed and immediately underwent reintegration.  Meanwhile, he was assisting his family with final arrangements for his father's impeding passing. In August 2009, he underwent several appointments and outprocessing and ultimately went on transition leave on 21 August 2009.  Thus, the events that transpired between the date the information was released and his final outprocessing date should be sufficient to warrant granting him the requested relief.  

6.  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.

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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states, in pertinent part, the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

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 applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence/argument provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  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 Army established the policy and the time individuals had to take action, coupled with his deployment, reintegration, and preparation for retirement prevented him from receiving the appropriate information regarding this program.  

4.  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.

5.  The 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) 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 December 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 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)                                         AR20100013329



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ABCMR Record of Proceedings (cont)                                         AR20100013329



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