IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100021081 


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 family members.

2.  The applicant states on 27 July 2010, while attempting to access the DMDC (Defense Manpower Data System) site, he spoke to a gentleman who works at the DMDC's trouble desk and he was informed that the system did not show he had submitted a request to transfer a portion of his 9/11 GI Bill education benefits to his family members.  He was also informed since he had retired from active duty his only recourse is to come to this Board.  He adds that sometime during the first quarter of fiscal year 2010, he called the Department of Veterans Affairs (VA), Education Benefits, to inquire about what he needed to do to be authorized the transfer of a portion of his benefits.  He was given a website that would allow him to make the election.  He was also told at the time he needed to select which of his education benefits he needed to use and that once he made his election, he would not be able to change it.  It was also explained to him that if he did not identify the family members he wanted to transfer a portion of his education benefits to before retiring, he would be unable to do so after retirement.  

3.  The applicant states he went to the website and selected the 9/11 GI Bill.  He identified his son as the recipient of his benefits and stated that his son would be able to attend college in 2014.  He was unable to print out a copy of this information but he did receive a confirmation on his computer screen stating that his information had been sent.  He believed he did everything he was told.  Unfortunately, he does not have any documentation to show that he followed the procedure and he does not remember the website he submitted his information through.  Had he known the information he submitted was not acted upon, he would have followed up with phone calls.

4.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 2010
* internet information, dated 27 July 2010, regarding the TEB of the Post-9/11 GI Bill
* a VA Form 22-1990 (Application for VA Education Benefits), dated
3 August 2010

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's record shows he enlisted in the Regular Army on 23 September 2001 and he held military occupational specialties 88N (Traffic Management Coordinator), 79V (Retention and Transition Noncommissioned Officer), and 25P (Microwave System Operator/Maintainer).  

2.  His record shows, in anticipation of his upcoming retirement, he underwent a pre-separation briefing on 11 March 2010 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" are mandatory for service members to receive further information or counseling, or attend additional workshops, briefings, classes, etc.

3.  He was honorably retired on 30 June 2010 and he was placed on the Retired List in his retired rank/grade of sergeant first class (SFC)/E-7 on 1 July 2010.  He was credited with 22 years, 1 month, and 15 days of creditable active service.

4.  During the processing of this case, on 11 March 2011, an advisory opinion was obtained from Soldier Programs and Services Division, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official recommended disapproval of the applicant's request.  He stated that in order to transfer Post 9/11 GI Bill benefits, the applicant must be on active duty or a member of the Selected Reserve.  All benefits must be transferred before the member retires.  Those policies are based on requirements established by law.  Consequently the Army does not have the legal authority to grant an exception to policy.  The applicant's records do not show he submitted a request for a transfer of Post 9/11 
GI Bill benefits to his family members before he retired.  Therefore, he does not meet the eligibility requirements to transfer benefits to his family members.  However, the Post 9/11 GI Bill benefits are available to him if he chooses to utilize those benefits.

5.  On 11 March 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 10 April 2011, the applicant responded with a rebuttal, wherein he stated that he stands by his assertion that he did what his VA representative told him to do.  Although the implementation instructions of this program were publicized, there was confusion in the field and a backlog at the VA.  To support his argument, all he has is his 23 years of impeccable service and his word.

6.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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 from 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.

7.  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.

8.  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 applicant contends his records should be corrected to allow him an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.

2.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the TEB prior to his retirement but there is no evidence to show he did so.  He contends there was confusion in the field and a backlog at the VA.  

3.  The DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly a year after the program was implemented.

4.  The applicant's impeccable service and his sincerity are not in question.  However, since the applicant retired on 30 June 2010, nearly a year after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  Therefore, he is ineligible to transfer benefits. 

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)                                         AR20100021081



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ABCMR Record of Proceedings (cont)                                         AR20100021081



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