IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100020596 


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 spouse.

2.  He states on his final out-processing appointment, he was not properly briefed by the education center on transferring his education benefits to his family members under the TEB provision of the Post - 9/11 GI Bill.  He states that he transferred educational benefits to his daughter prior to retiring; however, the education center did not inform him that he needed to add his spouse to at least one month of benefits before his retirement date in order to include her.

3.  He provides a Department of Veterans Affairs (VA) Form 22-1990E (Application for Transfer of Entitlement (TOE)).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 April 1988.  He served in various noncommissioned officer positions within and outside the continental United States, and he attained the rank/grade of staff sergeant (SSG)/E-6.

2.  A VA Form 22-1990E, dated 22 December 2009, shows he applied for and transferred Post - 9/11 GI Bill benefits to his daughter for her to attend college.  The document is date-stamped as received on 23 December 2009 by the VA.

3.  In preparation for his upcoming retirement, the applicant's record shows he underwent a pre-separation briefing on 16 August 2008 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).  Items checked "Yes" means it is mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

4.  A DA Form 669-1-R (Army Continuing Education System (ACES) Record Continuation Sheet), dated 12 March 2010, shows he acknowledged being counseled concerning his Veteran's Educational Benefits for the Post - 9/11 GI Bill at Fort Bliss, TX, by an Army Education Counselor.  He initialed and signed the document.

5.  He was honorably retired on 30 June 2010 and he was placed on the Retired List in his retired rank/grade of SSG/E-6 on 1 July 2010.  He completed 22 years, 2 months, and 25 days of creditable active service.

6.  In the processing of this case, on 17 November 2010, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, who recommended disapproval of the applicant's request.  The official stated the applicant is not eligible to transfer benefits under the Post - 9/11 GI Bill transferability program because Army and Department of Defense (DOD) policy requires a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits.  These policies are based on requirements established by law.  The Army does not have the legal authority to grant an exception to policy that would allow those who retired or separated from the Army to transfer Post - 9/11 GI Bill benefits.  The official further stated the opinion is based on legal authority outlined in Public Law
110-252, section 3319(b).

7.  The applicant was provided with a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He responded on 18 November 2010, wherein he stated during February 2010 he changed his educational benefits from the Montgomery GI Bill to the Post - 9/11 Gill Bill for the sole purpose of having educational benefits for his family.  He accomplished this for his daughter who started college at Northern New Mexico College while he was still on active duty.  However, while going through this process, he was never informed that each of his family members had to be selected for a minimum of one month to be able to draw benefits after his retirement date.  During his retirement out-processing at Fort Bliss there was 

never a briefing given or offered in reference to receiving the benefits of the Post - 9/11 GI Bill.  Therefore, he was never made aware of the requirement of having each of his family members selected with a minimum of one month to draw education benefits.  Due to the lack of information dissemination at Fort Bliss about the proper procedures of adding family members, he was never made aware of or informed about Public Law 110-252, section 302(b).  Even though Army, DOD, and VA initiated massive public campaigns, he was never properly informed, nor did he receive the proper information about taking proper procedures for adding family members so they may receive his educational benefits.

8.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post - 9/11 GI Bill and:

	a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute; or

	c.  is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013.  A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service.

9.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post - 9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

10.  On 10 July 2009, the Army released the Post - 9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, 

and detailed guidance on the administration of the program.  The policy states, in 
part, that those who retire on or before 1 August 2009 are, by law, not eligible to 
transfer unused Post - 9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer a portion of his educational benefits to his spouse under the TEB prior to his retirement, but he did not do so.  He contends that during his retirement out-processing at Fort Bliss, there was never a briefing given or offered in reference to receiving the benefits of the Post - 9/11 GI Bill.  However, evidence of record shows that he initialed and signed a DA Form 669-1-R, dated 12 March 2010, acknowledging he received individual counseling concerning his Veteran's Educational Benefits for the Post - 9/11 GI Bill, that was also signed by the Army Education Counselor at the Fort Bliss Education Services Center.  Evidence further shows that he applied for and transferred educational benefits to his daughter on 22 December 2009, well before his retirement date on 30 June 2010.

2.  The applicant's service and his sincerity are not in question; however, it is readily apparent the applicant was properly briefed because he successfully completed a TEB specifically for his daughter.  By exercising due diligence, he could have inquired if he needed to complete a TEB specifically for his wife.  Therefore, there is insufficient evidence on which to base granting the 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)                                         AR20100020596



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ABCMR Record of Proceedings (cont)                                         AR20100020596



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