BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100019250 


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, an exception to policy to transfer educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependents.

2.  He states initially he qualified for Transfer of Entitlement (TOE) for 36 months of educational benefits.  He requested and was approved to transfer 3 months of benefits on the TEB website, for his son who was attending college, while he was still on active duty.  He states that step-by-step instructions on the correct use of the TEB website were not available to him prior to his retirement on
30 September 2009.  He did not know at the time that he needed to add at least one month of benefits to his other two children who are currently attending high school.  He was under the false assumption that once the process was initiated prior to his retirement, the TEB website would track the remaining 33 months and he would transfer the months to his two children when they enrolled in college.

3.  He attended his retirement briefing in May 2009.  Guidance for the 
Post-9/11 GI Bill was not released until 22 June 2009.  Implementation instructions were not released until 10 July 2009.  He inquired at his retirement briefing about the implementation of the Post-9/11 GI Bill and was informed, "policy had not been released and there was no information available."  Several weeks later he went to the education center at Fort Bliss, Texas, to further inquire about the program, but was informed the education counselors had not yet received training on the Post-9/11 GI Bill and no further information was available.

4.  While on terminal leave, he purchased the Army Times that advertised an article "Insider's Guide to the New GI Bill" that was released in August 2009.  Although informative, the guide did not address the subject of how to distribute monthly increments to family members on the Department of Defense (DOD) portal.  He visited the Department of Veterans Affairs (DVA) website (the website has since been improved and updated) which had information on the general policy concerning eligibility requirements for TEB, but no detailed instruction on the use of the website and the same applied for the DOD website.  

5.  He states a message was sent by the Pentagon on behalf of the Department of the Army (DA) to "clarify" procedures for enlisted Soldiers and officers on the use of the TEB portal.  The message contained specific step-by-step detailed instruction pertaining to transfer to dependent children.  The message was dated 14 October 2009.  It was then that he realized he had not properly transferred benefits on the TEB portal.  The critical clarification instructions were disseminated too late for him.  His last day of active duty was 30 September 2009.  

6.  He provides:

* Orders 027-0015, dated 27 January 2009
* a All Army Activities (ALARACT) message, dated 14 October 2009
* DOD User Manual (Transfer of Education Benefits Portlet), dated 
27 August 2010
* a list with his three dependent children's names

CONSIDERATION OF EVIDENCE:

1.  Orders 027-0015, date 27 January 2009, issued by U.S. Army Air Defense Artillery Center and Fort Bliss, TX, shows the applicant had an approved retirement date of 30 September 2009.

2.  His DD Form 214 shows he was retired, in the rank of colonel/0-6, on 
30 September 2009.  

3.  An ALARACT message, dated 14 October 2009, shows that DA sent a message out that emphasized the basic procedures for establishing eligibility for the Post-9/11 GI Bill as well the TEB to family members on the portal.  The message stated that due to the increased number of inquiries to the U.S. Army Human Resources Command (USAHRC) the message clarified procedures for enlisted Soldiers and for officers and warrant officers.  The message further 

indicated when applying to TEB on the portal, service members should consider transferring at least one month to each to each family member listed on the TEB. Once the TEB request is completed, it would be sent to a certifying official and then on to the USAHRC and the Headquarters, Department of the Army (HQDA) G-1 for approval.  Once the TEB was approved, the information would be automatically fed to the DVA. 

4.  He provided a DOD TEB Users Manual, dated 27 August 2010, that describes step-by-step how to use the TEB portal, which allowed service members to transfer their education benefits to family members.

5.  During the processing of this case an advisory opinion was obtained from HQDA, Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who stated the applicant was not eligible to transfer benefits under the Post-9/11 GI Bill to his dependents as he was separated from military service prior to program implementation.  It further states the Army, DOD and the DVA initiated a massive public campaign plan that generated major communications through military, public, and social media venues; and that information on the program and subsequent transfer of entitlements were published well in advance of the implementation date of 1 August 2009.  

6.  The applicant responded to the advisory opinion on 4 February 2011.  He stated his claim of injustice was based on the fact that insufficient detailed instruction on the use of the TEB portal was available while he was on active duty, resulted in his inability to designate benefits to all his children prior to leaving active duty service.  He successfully transferred 3 months to his oldest son.  This is the basis of his case and the reason for his applicant to the Board. The fact that he is now retired is not relevant and does not discredit the merits of his case and the evidence that he has presented.  The advisory opinion stated that information on transfer of entitlements was published in advance of its implementation date.  Press releases, publications, policies, eligibility requirements, and information papers were available on the DOD and DVA websites.  He thoroughly read and understood all and any published information that was available to him before his retirement.  

7.  He further states the crux of his case and the contention on injustice is that the explicit step-by-step instructions (stating that you have to transfer at least 
1 month to any family member that may eventually use the benefit, regardless of their current age) on the use of the TEB portal were not published prior to his retirement.  On October 2009, 14 days after his retirement, a message was sent out by the Pentagon on behalf of the DA to "clarify" procedures for Enlisted 

Soldiers and officers on the use of the TEB portal.  This message contained vital step-by-step instructions.  If sufficient information had previously been published, a clarification message would not have been warranted.  In the following months after the Pentagon message was released, the DVA website, the DOD website, and the TEB portal were significantly modified and improved to include a 15 page user manual "Transfer of Education Benefits Portlet Program v.1.00 User Manual," dated 27 August 2010.  Obviously, there was a lack of detailed instructions if these two documents were published after the implementation of the Transfer of Benefits Program.  If either one of these documents had been published prior to his retirement date, he would have successfully transferred benefits to his children and not be in his current unfavorable situation. 

8.  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.

9.  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.  

10.  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's request that his record be corrected to show he applied for and the Army approved transferring his benefits under the Post-9/11 GI Bill to his dependents prior to his retirement from active duty on 30 September 2009 has been carefully considered and found to have merit.  

2.  Contrary to the basis for the denial recommendation cited in the G-1 advisory opinion, evidence of record shows that prior to the applicant's retirement date of 
31 July 2009, he was approved to transfer 3 month of benefits on the TEB website, for his son who was attending college.  He retired one month after implementation date of the program.  The TEB website was new at the time and detailed instructions for transfer of entitlements was not made clear.  It appears that there were insufficient systematic instructions on how to properly transfer his benefits under the Post-9/11 GI Bill to his remaining dependents prior to his retirement.  

3.  Notwithstanding the advisory opinion's recommendation, in view of the fact that information on transfer application procedures was not fully understood prior to his retirement, and given that he 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 upon implementation of the program.  

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)                                         AR20100019250





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ABCMR Record of Proceedings (cont)                                         AR20100019250



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