BOARD DATE:	16 February 2011  

		DOCKET NUMBER:  AR20100016027 


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 approval of Transfer of Educational Benefits (TEB) under the Post-9-11 GI Bill to his family members.

2.  He states he submitted an application to transfer his education benefits via the TEB website in December 2009.  His wife and son are on the Defense Eligibility Enrollment Report System (DEERS), but he has not received any response.  He contacted the Army G-1 Post 9-11 GI Bill section and he was told they had not received his application and since he retired in January 2010, he had to contact the Army Board for Correction of Military Records.  He also states he had no idea why they did not receive his application; he filled it out and sent it as a family.  He states someone had to receive the application, but when he goes to the TEB website now, neither his wife nor son's names appear.  He concludes that he would hate it if his son is not able to attend school and lose the educational benefits due to some type of error.  He would like to know what he could do to transfer the educational benefits now as they were looking forward to the opportunity to send their son to school.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Orders 233-0604, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, dated 21 August 2009, show he was to be retired effective
31 January 2010 and placed on the Retired List on 1 February 2010.
2.  He provided a copy of his DD Form 214 that shows after completing 26 years and 27 days of total active service, he retired by reason of sufficient service for retirement on 31 January 2010.

3.  During the processing of this case an advisory opinion was obtained from Department of the Army, Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who stated:

* there is no record showing the applicant transferred his benefits via the TEB website
* he is not eligible to transfer benefits under the Post 9-11 GI Bill transferability program
* Army and Department of Defense (DOD) 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 amend her eligibility status

4.  Accordingly, the advisory official recommended denial of the applicant's request to transfer benefits under the Post 9-11 GI Bill transferability program in accordance with the guidance provided in Public Law 110-252, section 3319(b).  The Departments of the Army, Defense, and Veterans Affairs (VA) 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.

5.  On 18 November 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.  He did not respond.

6.  On 22 June 2009, DoD guidance established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states eligible individuals are 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.

	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. 

	c. is or becomes retirement eligible during the period from August 1, 2009, through August 1, 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.  For those individuals who have an approved retirement date after 1 August 2009, and before 1 July 2010, no additional service is required.

7.  The policy further states the secretaries of the Military Departments will:

	a.  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 documents accordingly.

	b.  Maintain records for individuals who receive supplemental educational
assistance under section 3316 of Reference (a).  Provide those records to the Defense Manpower Data Center and the VA.

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 retired on or before 1 August 2009 were, 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 attests that he submitted his application for transfer of educational benefits through the TEB website and after receiving no response, he contacted the Army G-1 Post 9-11 GI Bill section, who told him they did not have his application and since he had retired, he was ineligible to transfer his benefits.  However there is no evidence of record and he did not provide any evidence that shows he submitted his application through the TEB website.  Regrettably, since he has already retired from active service he is not eligible to transfer his education benefits under the TEB provisions of the Post-9/11 GI Bill to his family members.

2.  In view of the foregoing, 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)                                         AR20100016027



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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