IN THE CASE OF:	   

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100017327 


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 records to show he applied for the Post 9/11 GI Bill Transferability Program in order to transfer his education benefits to his children before he retired from active duty on 31 October 2009.

2.  He states that when he was out processing the Army he was told by the Fort Eustis, VA education counselor that transferring benefits was a 2-step process. The first step was to apply for benefits through the Department of Veterans Affairs (VA), and, once completed, the next step was to transfer the benefits.  It was not explained to him that transferring benefits needed to occur prior to his departure from active duty.  Thus, by the time he received confirmation from the VA that he was eligible for the Post 9/11 GI Bill benefits, he was already retired.

3.  He provides:

* a chronology of events that transpired
* his retirement orders
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 October 2009
* his VA Form 22-1990 (VA Application for VA Education benefits) submitted via Veterans On Line Applications (VONAPP)
* a letter from the VA Regional Processing Office located in Buffalo, NY
* a letter he sent to the VA Regional Processing Office located in Buffalo, NY
* a certificate of eligibility from the VA Regional Processing Office located in Buffalo, NY
* email correspondence exchanged between himself and the Army G-1 Post 9/11 GI Bill Team
* correspondence exchanged between himself, a U.S. Senator, a representative of the VA, and a representative of the Army G-1

CONSIDERATION OF EVIDENCE:

1.  His record contains and he also provided a copy of Orders 077-0014, dated 18 March 2009, that show he had an approved retirement date of 31 October 2009.

2.  His DD Form 214 shows that after completing 26 years, 4 months, and 26 days of active service, the applicant retired from the Army on 31 October 2009 in the rank/pay grade of colonel (COL)/O-6.

3.  He provides a timeline of the events that transpired:

	a.  18 March 2009 - received retirement orders

	b.  20-31 July 2009 - while out processing at Fort Eustis, an education counselor told him that transferring benefits was a 2-step process.  First, he had to apply for benefits through the VA by registering on line via VONAPP.  Once his eligibility was confirmed, then he was eligible to transfer his benefit to his dependent children.  At no time during this conversation was it explained to him that he needed to complete this process prior to his retirement from active service.

	c.  3 August 2009 - completed final out processing at Fort Eustis.  He returned to complete the VONAPP application since part of the application process requires you to load your DD Form 214 (and he was not provided one until this day).  He provides a copy of a VA Form 22-1990 printed from the VONAPP system with a submission date of 3 August 2009 and a confirmation number of 1189871.  He entered the following comments on this form in the items indicated:

		(1)  Item 9 (Unsure which education benefit applies to me) - "I am retiring from military service and I want to confirm my eligibility for the chapter 33, Post 9/11 GI Bill Benefit."

		(2)  Item 25 (Remarks) - "I am retiring from active duty effective
31 October 2009.  I am submitting this form to apply for benefits under the Post 9/11 GI Bill program."

	d.  10 September 2009 - he received a letter from VA in response to his VONAPP application (which he provides).  The letter informed him he was eligible for Post 9/11 GI Bill benefits; however, he must reapply once he had retired.  Having been previously informed that he must first ensure he was eligible for benefits before he could transfer them, this led him to conclude that he must reapply for benefits and then take action after he was retired to transfer the benefit.  Nowhere in this letter from VA does it state anything about making sure he transferred his benefit before he retired.

	e.  14 December 2009 - he wrote a letter to the VA Regional Office in Buffalo, NY, wherein he asked them to re-determine his eligibility for Post 9/11 GI Bill benefits as a Veteran.  He also asked them to send instructions on how to transfer benefits to his dependent children.

	f.  27 February 2010 - he received a response from the VA Regional Office in Buffalo certifying he was entitled to benefits under the Post 9/11 GI Bill program. 
He provides a copy of this Certificate of Eligibility letter.

	g.  1 March 2010 - he called the VA to notify them that he was now "officially" eligible for Post 9/11 GI Bill benefits and that he wanted to transfer his benefit to his dependent children.  This is when he was told, to his astonishment, that he had to transfer the benefit prior to his retirement from active service.  He told the representative his story, but he was told there was nothing they could do and suggested he contact the Army G-1.

	h.  1 March 2010 - he email the Army G-1 regarding his situation.  They replied there was nothing they could do unless the law was changed.  He provides a copy of this email correspondence.

	i.  2 March 2010 - he wrote a letter to Senator Snow, asking for her assistance in this matter.

	j.  He received letters from Senator Snow on 16 March, 2 April, 30 April, and 21 May 2010 keeping her apprised of the status of his request.  In the final letter, the Army G-1 suggested he submit a request for relief to the Army Board for Correction of Military Records (ABCMR).  He provides copies of the correspondence exchanged between Senator Snow, the VA, and the Army G-1.

	k.  6 June 2010 - he sent a letter of thanks to Senator Snow and informed her he would submit a request to the ABCMR.

	l.  11 June 2010 - he submitted this application.

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:

* He 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 his eligibility status

5.  Accordingly, the advisory official recommended denial of his 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.  The Army G-1 attests 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.  In his response to the advisory opinion, he expressed his disappointment and contended there were many more Veterans who had been misinformed just as he was.

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.  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.  His request to change the effective date he applied for transferring his benefits under the Post 9/11 GI Bill to a date prior to his retirement from active duty on 31 October 2009 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 that having served over 26 years of active service, he had an approved retirement date of 31 October 2009; therefore, there was no requirement for him to extend an extra year in order to transfer his educational benefits.

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

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

6.  Evidence clearly shows he initiated the process of certifying his eligibility for Post 9/11 GI Bill benefits prior to departing active duty by submitting a VA Form 22-1990 via VONAPP on 3 August 2009, but did not receive certification of his eligibility until several month later in a letter, dated 27 February 2010.

7.  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.

8.  Therefore, in the interest of equity and fairness, it would be appropriate to change his record to reflect he applied to transfer his education benefits under the Post 9/11 GI Bill Transferability Program on 1 October 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 he completed a DD Form 2366-2 and a VA Form 22-1990 on
1 October 2009; and

	b.  showing the Army timely received his application on 15 October 2009, determined he met the qualifications for transfer of his educational benefits, and approved his request before his 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)                                         AR20100017327



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ABCMR Record of Proceedings (cont)                                         AR20100017327



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