IN THE CASE OF:	  

		BOARD DATE:	  18 January 2010

		DOCKET NUMBER:  AR20100014463 


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, he be allowed to transfer benefits to his children under the Post 9/11 GI Bill Transferability Program. 

2.  The applicant states:

* He was given erroneous guidance, handouts, and briefings before his retirement
* During his last six months of service in the Army he was told he was not eligible to apply for the Post 9/11 GI Bill because he was currently enrolled in the "EArmyU program"
* The education counselors at Fort Carson, CO told him on at least three different occasions he must be fully retired before applying for the Post  
9/11 GI Bill
* He was told to finish the classes he was enrolled in, retire, and then apply
* All guidance he received during all of his retirement briefings indicated he could sign up and transfer any portion of his Post 9/11 GI Bill at any time 

3.  The applicant provides:

* Documentation containing frequently asked questions pertaining to Department of Veterans Affairs education benefits
* Letter, dated 20 April 2010, from the Department of Defense
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  After completing 20 years, 5 months, and 5 days of creditable active service, the applicant retired from the Army on 31 October 2009 in the rank of sergeant first class.

2.  The applicant's DD Form 2648 (Pre-Separation Counseling Checklist), dated 23 July 2009, shows he checked the "No" block in item 13a (Education/Training - Education Benefits (Montgomery GI Bill, Veterans Educational Assistance Program, Vietnam-era, etc.)) (i.e., he did not desire to be counseled on education benefits). 

3.  There is no evidence of record which shows the applicant elected to transfer Post 9/11 GI Bill benefits to his dependents prior to his retirement on 31 October 2009.

4.  During the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who states the following:

* The applicant is not eligible to transfer benefits under the Post 9/11 GI Bill Transferability Program
* Department of the Army and Defense policy require a Soldier to be on active duty or a member of the Selected Reserves of the U.S. Army 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 allowing those who retired or were otherwise separated from the Army to transfer Post 9/11 GI benefits
* The advisory opinion is based on 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 Chief, Enlisted Professional Development Branch recommends denial of the applicant’s request and states that his recommendation is in accordance with guidance in Section 3319(b) of Public Law 110-252.  The Departments of the Army, Defense, and Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post 9/11 GI Bill and subsequent transfer of entitlements were published well in advance of its implementation date of 
1 August 2009.

6.  On 22 June 2009, Department of Defense (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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the Post 9/11 GI Bill Transferability Program prior to his retirement but did not do so.  He contends he was given erroneous guidance, handouts, and briefings on the Post 9/11 GI Bill Transferability Program before his retirement.  However, his DD Form 2648 shows he elected not to be counseled on education benefits.

2.  The Departments of the Army, Defense, and Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post 9-11 GI Bill and subsequent transfer of entitlements were published well in advance of its implementation.  
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.  Since the applicant retired on 31 October 2009, he is ineligible to transfer benefits under the Post 9/11 GI Bill Transferability Program 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)                                         AR20100014463



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ABCMR Record of Proceedings (cont)                                         AR20100014463



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