IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100014880 


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 correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his daughter prior to retirement under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  

2.  The applicant states he retired on 30 September 2009 from the Army with 
27 years of active service.  During his retirement briefings he was told he could transfer his MGIB benefits to his daughter.  In August 2009, when he attempted to make this transfer, his name did not appear on the website.  He tried to correct this but he was unable to do so before retiring.  He further contends that he was a recruiter for the last 19 years which made it difficult to get support because he was not on an Army installation.  He has been calling and emailing ever since.  He started the process to transfer his MGIB benefit but just ran out of time.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show:

	a.  he enlisted in the Regular Army on 7 September 1982;

	b.  he was a recruiter from 5 April 1994 until his retirement; and


	c.  he retired on 30 September 2009 by reason of sufficient service for retirement.

2.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1 [Personnel], Washington, DC.  The opinion stated:

	a.  Public Law 110-252, section 3319(b) requires the military member to be on active duty or in the Selected Reserve to be authorized to transfer MGIB benefits;

	b.  the Army and Department of Defense policy requiring a Soldier to be on active duty or a member of the Selected Reserve in order to transfer MGIB benefits is based on Public Law;

	c.  the applicant was ineligible to transfer MGIB benefits because he was no longer on active duty;

	d.  the Department of 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 MGIB benefits;

	e.  special congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status; and

	f.  the applicant's request should be denied.

3.  On 21 October 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  No response was received.

4.  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.

5.  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.

6.  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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he transferred his Montgomery GI Bill (MGIB) benefits to his daughter prior to his retirement because when he attempted to make this transfer, his name did not appear on the website.  He tried to correct this but he was unable to do so before retiring.
2.  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.

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.

4.  The is no available evidence showing that the applicant attempted to make this transfer in August 2009, but was denied because his name did not appear on the website.  Furthermore, there is no available evidence showing that he had continued to correct any such problem prior to retiring at the end of the following month.

5.  The evidence of record clearly shows the applicant retired from the Regular Army on 30 September 2009.  Accordingly, by law he is no longer eligible to transfer his MGIB benefits.

6.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20100014880



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ABCMR Record of Proceedings (cont)                                         AR20100014880



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