IN THE CASE OF:	  

		BOARD DATE:	 5 May 2011 

		DOCKET NUMBER:  AR20100020162 


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 he met the requirement to transfer this benefit prior to his retirement on 1 October 2009.  Recently he learned that he had to be on active duty to do so.  He sought assistance from the Department of Veterans Affairs (DVA) and the U.S. Army to no avail.  He contends that the Department of Defense (DoD), the Army, and the DVA failed to take sufficient steps to ensure service members were aware of key details regarding the transfer of this benefit - particularly the requirement that one must accomplish any transfer while still on active duty.  

3.  He further contends that there was a short time span between the time DoD and the Services established policy regarding GI Bill Transfer and the time individuals had to take action to take advantage of the benefit.  The short time span, compounded with a lack of clear communication, caused him and others to lose the option to transfer this benefit.  He states that Army messages, newsletters, and DVA fact sheets all failed to mention the requirement to be on active duty to transfer the benefit.  He found only one buried reference of the requirement on the TEB website.  He is concerned that service members may still be retiring today without being properly advised.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 30 September 2009, and Office of the Under Secretary of Defense (OUSD) memorandum, dated 22 June 2009.

CONSIDERATION OF EVIDENCE:

1.  After completing 29 years, 4 months, and 23 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.  The applicant separated from the military service prior to program implementation.

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

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

	d.  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 16 March 2011.  He disagreed that there was a "massive public campaign plan" because he was not aware that he had to complete the transfer of benefits while on active duty until after he was already retired.  He further states that through his research he determined that the DoD guidance was signed on 22 June 2009 that established the criteria for eligibility for the GI Bill and transfer of education benefits and was issued to the service components on 23 June 2009.  Hence, the Army did not receive guidance that it could use to implement procedures until after he had completely out-processed from the Army and was in Afghanistan.  He furnishes the following retirement timeline:

* 22 May 2009 - Final out-processing
* 26 May - 14 June 2009 - Permissive Temporary Duty (PTDY)
* 15 June - 30 September 2009 - Transition Leave (working as a contractor in Afghanistan)
* 1 October 2009 - Retired

4.  Finally, he argues that when you compare the timeline for Army implementation of the program with his transition timeline, it is evident that policies were not in place.  Additionally, he contends the Army's massive media campaign did not make a good faith effort to notify Soldiers who had already begun their transition.

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 was fully eligible for the Post-9/11 GI Bill and was not aware that he needed to be on active duty in order to transfer the benefits to his dependents.  

3.  The OUSD established the policy for authorizing the transferability of education benefits on 22 June 2009.  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 15 June 2009 through 30 September 2009, prior to the implementation date of the program, and retired on 
30 September 2009.

5.  Notwithstanding the advisory opinion, and in view of the fact that information on transfer application procedures were not fully available at the time he began his transition, 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.  

6.  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)                                         AR20100020162





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ABCMR Record of Proceedings (cont)                                         AR20100020162



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