IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100022691 


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, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program in order to transfer his education benefits to his dependents before he retired from active duty on 30 September 2009.

2.  The applicant states he out-processed with the Retirement Services Officer (RSO) at Fort Knox, Kentucky, on 31 July 2009, and departed on terminal leave until his retirement on 30 September 2009.  He claims that in August 2009 the Post-9/11 GI Bill was not in effect and the RSO had no details on how to transfer benefits to his dependents.  He claims he applied for an eligibility determination and for transfer of benefits through the Department of Veterans Affairs (VA) based on the information available to him at the time in August 2009 while he was still on active duty.  He states he received the letter from the VA confirming his application was processing on 17 September 2009 and was informed he would be contacted.

3.  The applicant further states that based on the letter he received from the VA, he waited for it to complete its determination.  He states that when he went to the web site to transfer the benefits, he could not access the account since he was retired.  He states he properly started the transfer process prior to retirement based on the information available to him from both the RSO and the web site at the time.  He claims he fully intended to transfer the benefits to his children and lost the right to this benefit through no fault of his own.


4.  The applicant provides the following documents in support of his application:

* VA letter, dated 17 September 2009
* VA letter, dated 5 January 2010
* Corps of Engineers memorandum, dated 13 May 2010
* Fort Knox Education Center e-mail message, dated 4 August 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains Orders 020-157, dated 20 January 2009, showing he was reassigned to the U.S. Army Transition Center for separation processing on 31 July 2009 with an approved retirement date of 30 September 2009.

2.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired in the rank of colonel/O-6 on 30 September 2009.  It further shows he completed 27 years, 3 months, and 28 days of active military service.

3.  On 31 July 2009, the applicant departed Fort Knox, Kentucky, on transition leave.  Shortly thereafter he submitted an application to the VA for Post-9/11
GI Bill benefits.

4.  On 17 September 2009 prior to his retirement date of 30 September 2009, the VA informed the applicant his application had been received.  The VA further informed the applicant there was no need to contact the VA and that he would be contacted if anything else was needed.

5.  On 5 January 2010, the VA informed the applicant he was entitled to benefits under the Post-9/11 GI Bill.

6.  During the processing of this case an advisory opinion was obtained from Headquarters, Department of the Army, 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, Department of Defense, and the VA 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.

7.  The applicant responded to the advisory opinion on 18 March 2011.  He stated the advisory opinion erroneously indicates he separated from military service prior to program implementation.  He claims the program was implemented on 1 August 2009 and, therefore, he was still on active duty and eligible through his retirement date of 30 September 2009.  He further points out the implementation guidance published by the Assistant Secretary of the Army for Manpower and Reserve Affairs defined the key responsibilities which included that Education Services Officers (ESO) conduct mandatory educational benefits counseling for all Soldiers separating from the Army, that this counseling be documented on the DA Form 669 (Education Record), and that Soldiers be required to sign the form attesting to receiving counseling.  He claims he attended the education briefing at Fort Knox in March 2009.  However, at the time the education office did not have information regarding the Post-9/11 GI Bill and the RSO had no information on the program during his final out-processing on 31 July 2009, which was prior to implementation of the program.

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.

	b.  Service members must have served on active duty in the Regular Army or 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 that 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 is found to have merit.

2.  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.

3.  Contrary to the basis for the denial recommendation cited in the G-1 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 departed Fort Knox on 31 July 2009 prior to the implementation date of the program.  It further shows he attempted to find information regarding applying for transfer of Post-9/11 GI Bill benefits to his children prior to his departure on transition leave; however, the RSO and education officer at Fort Knox did not know the specific application procedures.

4.  The evidence further shows the applicant did, in fact, apply to the VA for 
Post-9/11 GI Bill eligibility prior to his separation from active duty for retirement and the VA confirmed it had his application prior to his retirement.  This clearly shows he initiated the process of certifying his eligibility for Post-9/11 GI Bill benefits prior to departing active duty.

5.  Notwithstanding the advisory opinion recommendation, in view of the fact that transfer application procedures were not fully implemented at Fort Knox, and given the applicant clearly initiated eligibility certification prior to his retirement, it would serve the interest of equity to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill transferability provision upon implementation of the provision.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 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)                                         AR20100022691



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ABCMR Record of Proceedings (cont)                                         AR20100022691



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