IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100016834 


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, that her records be corrected to show she applied for the Post 9/11 GI Bill Transferability Program before 31 May 2010.

2.  She states:

* She read an article in the Army Times and understood that if she was on active duty on 1 August 2009 or after, she was eligible to transfer her benefits to her dependents
* She called the education center at Fort Polk, LA and spoke with
Mr. S------ in October 2009
* Mr. S------ gave her incorrect information by telling her she had to serve an additional year in the Army in order to qualify for the program
* Mr. S------ sent her a copy of the policy and eligibility requirements 
* She failed to see any information in the policy pertaining to retirement during the timeframe specified by Mr. S------
* She called the Fort Polk education center again in February 2010 and was she advised to wait until she retired to submit her application
* She retired on 31 May 2010 
* She contacted the Department of Veterans Affairs (VA) and a representative gave her a telephone to the Department of Defense (DOD)
* DOD gave her the email address for a point of contact (POC) for the GI Bill team, who in turn gave her the correct information


* The email she received from the POC of the GI Bill team stated to apply to the Army Board for Correction of Military Records (ABCMR)

3.  She provided:

* A copy of Orders 240-0003, Headquarters, Fort McPherson, GA dated
28 August 2009
* A copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 2010

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years and 18 days of active service, the applicant retired from the Army on 31 May 2010.

2.  She provided a copy of Orders 240-0003, dated 28 August 2009, that show she had an approved retirement date of 31 May 2010.

3.  She also provided a copy of her DD Form 214 for the period ending 31 May 2010.  The version of this form is dated August 2009 and does not require the entry of any information pertaining to educational benefits.

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

* She is not eligible to transfer benefits under the Post 9-11 GI Bill Transferability Program
* HQDA and DOD policy require a Soldier to be on active duty or a member of the Selected Reserve 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 Public Law 110-252, section 3319(b)
* Specific congressional action would be required to change or amend the current legislation in order to amend her eligibility status


5.  Accordingly, the advisory official recommended denial of her request to transfer benefits under the Post 9/11 GI Bill Transferability Program in accordance with guidance provided in Public Law 110-252, section 3319(b).  The Department of the Army, Department of Defense, and the 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.

6.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives 2642.  In July of 2008, Congress passed law for the Post-9/11 GI Bill, which went into effect on 1 August 2009.

7.  Public Law 110-252, section 3319 provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service, on or after, 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or; between 90 days and 36 months or more of total aggregate qualifying active duty service, and

	b.  Service members also must have served on active duty in the Regular Army; as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302 and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

8.  Section 3319 also provides for service members who are retirement eligible.  In pertinent part, if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013, and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

   a.  Service members eligible for retirement on 1 August 2009 - no additional service required;

   b.  Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 - no additional service required;

   c.  Service members eligible for retirement after 1 August 2009, and before 
1 August 2010 - 1 year of additional service is required;

   d.  Service members eligible for retirement on or after 1 August 2010, and before 1 August 2011 - 2 years of additional service is required;

   e.  Service members eligible for retirement on or after 1 August 2011, and before 1 August 2012 - 3 years of additional service is required; and

	f.  Active duty service members, who separate, retire, transfer to the Reserve or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

9.  Elections must be made using a VA Form 22-1990 (Application for VA Education Benefits).  Item 4f (The “Transfer of Entitlement” Program (Title 38, U.S. Code, Chapter 30, Section 3020)) and Part V (Transfer of Entitlement Questions) must be completed when filling out this form.  Instructions for completing the VA Form 22-1990 under the Post 9/11 GI Bill Transferability Program show, in pertinent part:

   a.  Item 4f - The service member’s branch of military service must approve a request to transfer benefits to a dependent who is designated by name to receive the transferred benefits.  The service member transferring entitlement must also designate the number of months transferred and the period (beginning date and ending date) for which the transfer is effective.  He/she should also provide a completed DD Form 2366-2 (Montgomery GI Bill Act of 1984 (MGIB)) with the application.

   b.  Part V - Service members should send the completed VA Form 22-1990 and DD Form 2366-2 to the VA.  The VA began accepting applications for the Post-9/11 GI Bill on 1 August 2009.  Once the VA has received the service member’s application, an eligibility determination would be made and if applicable, a Certificate of Eligibility would be issued.

DISCUSSION AND CONCLUSIONS:

1.  Her request to change the effective date she applied for transferring her benefits under the Post 9/11 GI Bill was carefully considered.

2.  The Post 9/11 GI Bill was implemented on 1 August 2009, and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level. 

3.  The evidence of record shows she had an approved retirement date of
31 May 2010; therefore, there was no requirement for her to extend an extra year in order to transfer her educational benefits as allegedly told to her by Mr. S------ of the education center at Fort Polk.

4.  The advisory opinion concluded she was not eligible to transfer her benefits under the Post 9/11 GI Bill Transferability Program because she retired before submitting her request.

5.  She attests that she made several attempts to acquire the correct information well in advance of her retirement date; however, she was misinformed and provided incorrect information.

6.  Notwithstanding the advisory opinion, in view of the fact it was a new program, it is not unreasonable to presume there were differing interpretations of the implementing instructions by the education counselors at installation level.

7.  Therefore, in the interest of equity and fairness, it would be appropriate to change her record to reflect she applied to transfer her education benefits under the Post 9/11 GI Bill Transferability Program on 1 November 2009.

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 she completed a DD Form 2366-2 and a VA Form 22-1990 on
1 November 2009 and
	b.  showing the VA timely received and processed her application on            15 November 2009.



      ___________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)                                         AR20100016834



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ABCMR Record of Proceedings (cont)                                         AR20100016834



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