IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100016294 


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, correction of his military records to show that he transferred his Montgomery GI Bill (MGIB) benefits to his dependents while still on active duty.

2.  The applicant states he applied to transfer his MGIB benefits on 30 June 2009.  He showed every intention of completing the transfer of entitlements (TOE) and thought he had completed the transfer to a family member.  He followed the instructions sent to him by the Department of Veterans Affairs (VA) on 30 June 2009.  After reading all of the documentation and talking to numerous persons on the phone, he completed a VA Form 22-1990E (Application for Transfer of Entitlement (TOE) and emailed it to the appropriate office on 3 August 2009.  He was told this application process could take numerous weeks or longer.  He contends he did everything the VA told him to do and met every requirement to transfer his MGIB benefit.  He had not received a response from the VA by the time he retired on 30 September 2009 but did not think this to be unusual because of the volume of requests.  In October 2009, when he inquired as to the status of his request, he was told that it had been denied because he did not complete the process on the website.  In all of the correspondence he received, he was never told to do this, even though he had asked many times if the TOE packet was all he had to complete.

3.  The applicant is no longer on active duty and cannot now complete the TOE process.  He realizes the VA is very busy and has done a good job during the 


transition recently.  However, he did not get all of the information and directions needed to have a fair chance at completing this request.  He believes he showed every intention of completing the TOE process.  The website would have only taken a minute to complete because he had already spent a couple hours completing the VA Form 22-1990E.

4.  The applicant has spent 6 months talking to VA representatives and submitting documents to their appeal board, but he was told they could not help him because he is no longer on active duty.  He is not asking for something he has not earned.  He believes he was disadvantaged by the lack of information given to him by both the Department of the Army (DA) and VA.  Additionally, if one recalls in June 2009, the DA and VA were still confused about the Post 9/11 benefits and the transfer of them to another family member.

5.  The applicant provides copies of VA Form 22-1990 (Application for VA Education Benefits), dated 9 June 2009; three VA letters, dated 15 June 2009 and 30 June 2009; VA Form 22-1990E, dated 2 August 2009; VA Form 21-686c (Declaration of Status of Dependents), front side only; Electronic Application for Transfer of Entitlement (TOE) with confirmation number, dated 3 August 2009; and email communication between the applicant and DA, dated in June 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he:

	a.  enlisted in the Regular Army on 15 September 1989;

	b.  progressed through the ranks to master sergeant (MSG)/E-8; and

	c.  had completed no less than six deployments, including Bosnia and Kuwait.

2.  Orders 344-0109, issued by U.S. Army Intelligence Center, Fort Huachuca, Arizona, dated 9 December 2008, ordered the applicant to be released from active duty effective 30 September 2009 and placed on the retired list on
1 October 2009.

3.  The applicant completed and submitted a VA Form 22-1990.

	a.  This form states at the top of the first page that an internet version of the form is available.  It does not state that use of the internet is mandatory.


	b.  The applicant indicated in Part II that he was applying for Chapter 33 - Post 9/11 benefits and understood that his election was irrevocable.

	c.  The form is signed and dated 9 June 2009.

4.  In a letter, dated 15 June 2009, the VA informed the applicant that his application for benefits had been received.  Because of a great number of claims, action on his request would be delayed.  He was told that the VA was in the process of deciding whether additional evidence or information was needed.  He was advised that if anything else was needed the VA would contact him.

5.  In a letter dated 30 June 2009, the VA provided the applicant with a Certificate of Eligibility.  This letter stated that the VA had received his application for the Post 9/11 GI Bill.  He was further informed that this certified his eligibility for benefits for an approved program of education or training under the Post 9/11 GI Bill beginning 1 August 2009.

6.  In a letter, dated 30 June 2009, the VA informed the applicant that, "You have claimed VA education benefits under the Post-9/11 GI Bill benefit program, transfer option of Transferabilty Program."  He was told that the VA needed additional information from his dependents before the VA could make a decision on his claim.  The VA letter stated, "Please send us the following:  A completed VA Form 22-1999e, Application for VA Education Benefits from your dependent(s) in which you are transferring entitlement.  Your dependent needs to reapply for transfer of entitlement (TOE) after August 1, 2009.  DoD (Department of Defense) has not implemented the TOE program at this time.  DoD will send out public announcements when they begin offering transferability.  Please wait for further information to be issued by DoD."

7.  The applicant has provided a completed VA Form 22-199E showing his signature and dated 2 August 2009.

8.  The applicant has also provided a copy of VA Form 22-1990E (11 pages) showing that it was submitted on 3 August 2009 and containing a confirmation number of "1222968."

9.  The email communications, dated on and after 9 December 2009, provided by the applicant contains a "GI Bill TOE Thread," which apologizes for any misunderstanding.  It further states that the transfer of eligibility for benefits (TEB) should only be completed via a website that is only available to military members. It specifically states not to use VA Form 22-1990E to apply for TEB.

10.  In the processing of this case, on 28 October 2010, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, Washington, DC.  The advisory official 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 DoD 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 DA 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.

11.  On 29 November 2010, a copy of the advisory opinion was sent to the applicant for his information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

12.  A Memorandum for Deputy Chief of Staff, G-1, Subject: Post 9/11 GI Bill Policy Memorandum, dated 10 July 2009, provides Army policy for implementation.  It further states that Soldiers with an approved retirement date on or after 1 September 2009, but before 1 June 2010, do not incur any additional service requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he transferred his MGIB benefits prior to retirement.

2.  On 9 June 2009, the applicant submitted his application.


3.  On 30 June 2009, the VA asked him to resubmit after 1 August 2009, when the program would become effective.  This letter does not mention anything about mandatory use of the website or that he needed to submit the application to any other office or organization.

4.  The available evidence clearly shows that the applicant intended to request to transfer his MGIB benefits and thought he had done so.  The evidence clearly shows he made a sincere attempt to understand and follow the procedures.  None of the information provided to the applicant says he "had to use" the website to submit the request.  In fact the forms he used only say that "he may complete and send his application over the internet."  He instead submitted it via email on 3 August 2009 and received a confirmation number from the VA.  It appears he was never informed of his mistake until the VA told him of it on or after 9 December 2009, and offered their apology for the misunderstanding.  This begs the question as to why the VA did not inform him immediately when they received his emailed application that it was unacceptable.  He would have still had plenty of time to send it via the website.

5.  Instead, by the VA not responding to his emailed application, he was erroneously led to believe he had properly completed the application process.

6.  The applicant had been on orders since 9 December 2008 for retirement.  Accordingly, he was released from active duty on 30 September 2009 and placed on the retired list effective 1 October 2009.  Because of his retired status, he lost his eligibility to transfer his MGIB benefit.

7.   The advisory opinion obtained in this case simply recommended that the applicant's request be denied because he is no longer on active duty.  The advisory opinion failed to recognize the fact that he had made a sincere effort to properly process his application or to address the reason for it not being approved.  Furthermore, it does not offer an opinion as to why the DA and/or VA did not timely inform the applicant that his email application was unacceptable.

8.  Notwithstanding the recommendation in the advisory opinion, and as a matter of equity, the applicant's records should be corrected to show he properly transferred his MGIB benefits prior to retirement.  Doing so does not result in the Soldier receiving any additional benefit that he would not have been entitled to had he understood the process and submitted his request via the website while still on active duty.


BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that he had properly applied for transfer of his MGIB benefits prior to retirement; and

	b.  showing that his application for transfer of MGIB benefits was approved prior to his date of retirement.



      __________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)                                         AR20100016294



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ABCMR Record of Proceedings (cont)                                         AR20100016294



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