IN THE CASE OF:	

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100017960 


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 his records be corrected to show he applied for the Transfer of Post 9/11 GI Bill Benefits to Dependents (TEB) prior to leaving active duty.

2.  The applicant states, in effect, that he met all the requirements for the Post 
9-11 GI Bill Transferability Program and in fact signed up in August 2009.  However, after he entered his dependents' information into the system and hit save his dependents were not listed.  He did not understand the system at that time and decided to tackle the problem at a later date.  He contends the first time he was notified that he had to be on active duty to transfer his benefits was in March 2010, after his retirement.  

3.  The applicant provides copies of the following:

* DD Form 214 (Certificate of Release of Transfer from Active Duty), effective 30 September 2009
* DA Form 31 (Request and Authority for Leave) for the period 3 July 2009 to 30 September 2009, dated 7 April 2009
* Notice of Disagreement , dated 11 April 2010
* DVA Denial Letter, dated 17 May 2010
* Request of Congressional Assistance, dated 31 May 2010
* U.S. Senator's (Maryland) Letter, dated 1 June 2010
* U. S. Army G-1, email correspondence, dated 7 July 2010
* Transfer of Post 9/11 GI-Bill Benefits to Dependents (TEB) extract from the VA website
* Eligibility requirements for transferring benefits handout
* Post 9/11 GI Bill Transferability Policy Quick Reference
* Submitting a Request to Transfer Benefits
* Eligibility Requirements for transferring benefits
* DVA TEB Program Information
* The Post 9-11 Veterans Educational Assistance Acto of 2008 (Chapter 33) pamphlet

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years and 12 days of active service, the applicant retired from the Army on 30 September 2009.

2.  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:

   a.  Army and DoD policy require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits.

	b.  Those policies are based on requirements established in law.  Consequently, the Army does not have the legal authority to grant an exception to policy.

	c.  This opinion is based on the 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 change the applicant's eligibility status.

3.  The applicant was provided a copy of this advisory opinion and responded with a rebuttal on 4 February 2011.  He stated that he completed his Master's degree in July 2009 prior to the effective date of the TEB.  His goal was to use the benefit for his son who was entering college in the next year.  In August 2009 he went to the website and entered each of his dependents' names because they were not listed.  He tried to save the information but the system did not save the names of his dependents.  After discussing this with other Soldiers he determined that this was a common problem.  He tried again after his retirement date to transfer the education benefits but was informed that he was not eligible to do so because he was not on active duty.  The DVA denied his request citing the fact that the Army had not approved him for the transferability program.  He subsequently requested assistance with his claim from his congressman.  As supporting documentation, he provided extracts of TEB literature.  These are the same documents he provided in this application to the Board.  He contends none of these documents state the need to transfer benefits prior to separating from active duty.  Additionally, he feels that after serving honorably it should be a privilege to give him and other Soldiers like him the benefits they have earned.  He should not have to appeal to the DVA, his congressman and the Army Review Boards Agency to gain benefits.  He and other Soldiers should not be disqualified from this benefit simply because websites or processes were not fully operational when they transitioned from the military or because benefit information was not available.

4.  He provides a copy of his DD Form 1172 which verifies his dependents as     of 22 February 2010; his transition leave form for the period 3 July 2009 to        30 September 2009; and miscellaneous TEB literature he obtained from DVA websites; DVA counselors and education counselors.  

5.  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 a law for the Post-9/11 GI Bill, which went into effect on 1 August 2009.

6.  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.  

7.  The program guidance stipulates 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he transferred his education benefits under the TEB provision of the Post-9/11 GI Bill to his dependents prior to his retirement date.

2.  He contends he manually entered his dependent information into the system; however, the system failed to save the information.  His second attempt was made after he retired and at that point he found out he was not eligible.  Further, he argues he was given the wrong information and the guidance for transferring his benefits was unclear.  

3.  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.  



4.  Contrary to the basis for the denial recommendation cited in the ASA M&RA advisory opinion, the applicant did not separate from active duty prior to implementation of the Post 9/11 GI Bill.  The evidence of record shows the applicant was on transition leave from 3 July 2009 through 30 September 2009, prior to the implementation date of the program, and retired on 1 November 2009.  It further shows he attempted to find information on applying for transfer of Post 9/11 GI Bill benefits to his children prior to his departure on transition leave; however, specific application procedures were still fluid.  

5.  The applicant was fully eligible to receive Post 9/11 GI Bill benefits and had already completed his master's degree program; therefore, it is plausible to conclude his intent was to transfer his benefits to his dependents and not use it for himself.  

6.  Notwithstanding the advisory opinion recommendation, in view of the fact information on transfer application procedures were not fully available at his installation, and given the applicant clearly initiated eligibility certification prior to his retirement, it would serve the interest of equity and fairness to correct his record to reflect he applied to transfer his education benefits under the Post 9/11 GI Bill Transferability Program on 1 August 2009, upon implementation of the program.  

7.  In view of the above, his request for relief should be granted.

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 showing the applicant filed his application and the Army approved his request to 


transfer Post 9/11 GI Bill benefits to his dependents prior to his retirement, provided all other program eligibility criteria are met.   




      _______ _   __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)                                         AR20100017960



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017960



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1