IN THE CASE OF:	  

		BOARD DATE:	    15 March 2010

		DOCKET NUMBER:  AR20100021133 


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 military records to show he transferred his Post 9/11 GI Bill educational benefits to his dependents prior to retirement.

2.  The applicant states he tried to transfer his Post 9/11 GI Bill educational benefits to his dependents prior to retirement; however, he was misinformed of the process by officials at Fort Lewis, WA.  He was told he had to go through the Department of Veterans Affairs (VA).

3.  The applicant provides copies of his retirement orders, DA Form 31 (Request and Authority for Leave), VA Form 22-1990E (Application for Transfer of Entitlement) for each of his dependents he designated to use the benefits, email from the Defense Manpower Data Center (DMDC), letters from the VA certifying his entitlement to benefits, and letters from the VA to his dependents denying them benefits. 

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the Army, effective 31 October 2009, in the rank of sergeant first class/E-7. 



2.  The memorandum provided by the applicant states:

	a.  Prior to beginning his transition leave on 17 August 2009, he went to the Education Center, Fort Lewis to obtain information on how to have his Post 9/11 GI Bill educational benefits transferred to his dependents.  He claims the education advisor "wasn't sure," but he was told that he should go through the VA using the VA Form 22-1990E for each of the designated dependents. 

	b.  He was never informed that he had to use the Transfer Education Benefits (TEB) process on the Department of Defense (DOD) sponsored website.

	c.  he realized his dependents were being denied the use of his Post 9/11 GI Bill education benefits when the VA notified him that they were not properly designated.

3.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1 [Personnel], Washington, DC.  The opinion stated:

	a.  Although the applicant is eligible to receive benefits under the Post 9-11
GI Bill Program, he is not eligible to transfer those benefits.  Public Law 110-252, section 3319(b) requires the military member to be on active duty or in the Selected Reserve to be authorized to transfer Post 9/11 GI Bill benefits;

	b.  Army and DOD policy requires a Soldier to be on active duty or a member of the Selected Reserve of the U.S. Army in order to transfer the benefits.  These policies are based on requirements established by law;

	c.  the Department of 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 the benefits;

	d.  special congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status; and

	e.  the applicant's request should be denied.

4.  On 24 January 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded by stating that he did try to process the transfer of benefits to his dependents while still on active duty.  He states that he was misinformed.  If he had been informed of the correct method to use he would 


have done so.  As a result of the denials, his dependents will not be able to continue their educations because he cannot afford the costs without the Post 9/11 educational benefits.  

5.  On 22 June 2009, 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 Component service.

6.  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.

7.  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.

8.  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.  A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent:  (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) has at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agrees to serve at least 4 additional years from the date of request, unless retirement eligible.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show he transferred his Post 9/11 GI Bill educational benefits to his dependents prior to retirement. 

2.  DOD established the criteria for the TEB provision of Post-9-11 on 22 June 2009.  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.  Therefore, this information would have been available to the applicant before he departed on his transition leave.

3.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but did not do so.   

4.  The applicant claims officials at Fort Lewis misinformed him of the process to use to transfer his Post-9/11 GI Bill benefits.  He was told he should start by going through the VA.  He provided copies of VA Forms 22-1990E that he presents as being signed and received at the VA on 24 July 2009.  There is no available evidence to show the VA received these documents on 24 July 2009.

5.  The evidence of record clearly shows the applicant retired from the Regular Army effective 31 October 2009.  Accordingly, by law he is no longer eligible to transfer his benefits.

6.  In view of the above, 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)                                         AR20100021133



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ABCMR Record of Proceedings (cont)                                         AR20100021133



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