IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100018912 


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 correction of his records to show that he transferred his Montgomery GI Bill (MGIB) educational benefits to his spouse and children under the Post 9/11 GI Bill prior to separating from active duty.

2.  The applicant states that while on active duty he contributed funds via payroll deduction to secure his educational benefits under the MGIB.  However, he was never informed of the requirement nor given the opportunity to transfer his educational benefits to the Post 9/11 GI Bill before he was separated from active duty.

   a.  He states a lack of knowledge on the part of Army Education System counseling officials in regards to the requirements for transferability between the two programs, along with the turmoil while the Post 9/11 GI Bill was pending implementation, contributed to the error.

   b.  There was no notification system for those leaving active duty to alert them of any GI Bill election requirement.

   c.  On 22 June 2009, he received educational benefits counseling as part of his out-processing for retirement at the Army Education Center, Fort Lee, VA.  He had questions about differences in the two programs and also inquired about what he had to do to make an election of one GI Bill program over the other.  The counselor was not able to answer his questions because the Post 9/11 GI Bill was still under discussion as pending legislation and he was advised to monitor specific Army publications and websites while he was on transition leave and even after retiring from active duty.

   d.  He monitored the various publications and websites, but saw no specific information that required him to select either GI Bill before he was separated from active duty.

   e.  On 1 July 2010, he met with the Education Services Officer, Quantico Marine Corps Station, VA, to obtain information on advanced degrees and his
GI Bill educational benefits.  He was informed that because he had not selected one program over the other before he had separated from active duty, he was no longer eligible to elect transferability from the MGIB to the Post 9/11 GI Bill.  He was also informed that he could still use his MGIB benefits.

3.  The applicant provides copies of a counseling statement, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and Certificate of Retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the U.S. Army on 4 June 1983 and he entered active service on 6 September 1985.  He was promoted to the rank/grade of major (MAJ)/O-4 on 1 June 1996.

2.  The applicant's DD Form 214 shows he was honorably retired from the Regular Army on 30 September 2009 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He had completed 24 years and 25 days of net active service and 2 years, 3 months, and 2 days of total prior inactive service.

3.  In support of his application, the applicant provides an Army Continuing Education System, Fort Lee, VA, statement, dated 22 June 2009, that shows he received counseling on veterans' educational benefits.  He was informed that he would receive up to 36 months of educational benefits and that he had 10 years from the date of his separation from active duty to use the educational benefits.

4.  On 20 August 2010, The Army Board for Correction of Military Records (ABCMR) advised Senator Jim Webb (the applicant's senator) that the Deputy Chief of Staff for Personnel, G-1, is charged with making any required/justified entries to the Transferability of Education Benefits tracking system and offered a point of contact to assist with the applicant's request.  The senator was also advised that, in the event the Deputy Chief of Staff, G-1, cannot accomplish the transfer, his constituent's application would be referred to the ABCMR.

5.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, Washington, DC.

   a.  The advisory official does not recommend administrative relief.

   b.  The advisory official notes the applicant is eligible to receive benefits under the Post 9/11 GI Bill for himself, as he meets the basic requirements for entitlements.  However, he is not eligible to transfer those benefits.

		(1)  Department of the Army and Department of Defense 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.

		(2)  The policy is based on requirements established in law.  Consequently, 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 Bill benefits.

	c.  The advisory shows this opinion is based on legal authority outlined in Public Law 110-252, section 3319(b), and that specific Congressional action would be required to amend the current legislation in order to change the applicant's eligibility status.

	d.  The advisory official notes the Department of the Army, Department of Defense, and Department of Veterans Affairs 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 was published well in advance of the implementation date of
1 August 2009.

6.  On 4 January 2011, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.

7.  On 31 January 2011, the applicant responded that he intended to submit his comments to Senator Webb for review and response to the advisory opinion.

8.  In the applicant's comments to the senator, he remarked that the GI Bill was not free for him and that he had paid for his benefits by contributing $1,200.00 and serving his country for more than 24 years.

   a.  He requested authorization to transfer his Post 9/11 GI Bill educational benefits to his spouse and children.
   	(1)  He restated his unsuccessful efforts to gain information on the process and procedures to affect the transfer of his educational benefits.

   	(2)  He asserted that corrective action had been successfully taken on behalf of many members of the Armed Forces who missed the window of opportunity to transfer their educational benefits.

   b.  He summarized the G-1 advisory opinion and noted Congressional action would be required to change legislation in order to change his eligibility status.

   c.  He requested Senator Webb's assistance and advice on his options.

9.  On 24 February 2011, Senator Webb forwarded the applicant's comments to the ABCMR requesting every appropriate consideration in the applicant's case in accordance with all rules, regulations, and laws applicable to the Agency.

10.  Public Law 110-252 (Supplemental Appropriations Act, 2008), in pertinent part, provides authority to transfer unused education benefits to family members.

   a.  This Public Law amended Title 10 (Armed Forces), U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified dependents.

   b.  An eligible individual is any member of the Armed Forces who, at the time 
of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  six years of service in the armed forces and enters into an agreement to serve at least four more years as a member of the Armed Forces; or

		(2)  the years of service, in pertinent part, as determined in Army regulations as set established by the Secretary of the Army.

   c.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals referred to in paragraphs (1)
and (2).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows:

	a.  The applicant received counseling on veterans' educational benefits on
22 June 2009 and he was advised to monitor specific Army publications and websites regarding the Post 9/11 GI Bill while he was on transition leave.

   b.  Information on the Post 9/11 GI Bill and subsequent transfer of entitlements was published in military, public, and social media venues well in advance of the implementation date of 1 August 2009.

   c.  The applicant retired from active duty on 30 September 2009.

   d.  The applicant is eligible to receive benefits under the Post 9/11 GI Bill for himself, as he meets the basic requirements for entitlements.  However, he is not eligible to transfer those benefits as he did not do so while on active duty.

2.  There is no evidence that Congressional action was taken by the applicant's senator (or any member of the U.S. Senate or U.S. House of Representatives) to amend the current legislation in order to change the applicant's eligibility status.

3.  Therefore, considering all the evidence and information presented by the applicant, together with the evidence of record, 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)                                         AR20100018912



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ABCMR Record of Proceedings (cont)                                         AR20100018912



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