IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100022899 


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 the date of transfer of educational benefits to his dependents under the Post-9/11 GI Bill be backdated from 13 July 2010 to 15 August 2009.

2.  The applicant states it is an injustice that his current service obligation required to secure the benefits for his dependents is currently 13 July 2012.  This date reflects the lack of clarity and inadequate information published on the program during the August 2009 time frame.  He contends he was notified by his chain of command in late June 2009 of the coming opportunity to sign up for and transfer educational benefits under the Post-9/11 GI Bill to his two dependents.  Two emails were sent (26 June and 7 July 2009) through his supervisory channels to inform officers of the potential benefits of the program and how to accomplish the transfer of benefits to dependents.  There was no other information disseminated through command channels concerning the program.  Nothing in the June 2009 email indicated there was anything significant about the "date" any officer chose to transfer the benefits to his/her dependents.  All that was clear from the information received is that it could be accomplished and was available by merely going to certain websites to apply and then transfer the benefits.

3.  The applicant states he visited the Department of Veterans Affairs (VA) websites shortly after receiving the emails to sign up for and learn more about the program.  He had read in some military publications that there were certain obligations of additional service for transferring the benefits to dependents.  He wanted to ensure he understood how the provisions would apply to him as his retirement date after 20 years of active duty service was 14 September 2010.  While searching the VA website, he discovered Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, and read a section that appeared to state he had 2 additional years of service obligation beyond retirement in order to lock in the benefits.  It was only August 2009 so he believed he had plenty of time to complete the remainder of the process.

4.  The applicant states that as he neared his actual retirement date, he visited the VA website and discovered a fact sheet that indicated the date of transfer was, in fact, the determining factor in how long the additional service obligation was.  He concludes by stating he is requesting the backdate due to being misled by DTM 09-003 and the lack of information on the VA website in 2009 which caused him to incur an additional 11 months of service to the Army.

5.  The applicant provides email messages, dated 26 June and 7 July 2009; a copy DTM 09-003; and correspondence from the VA.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a commissioned officer in the Judge Advocate General's Corps and entered active duty on 24 September 1990.  He is currently serving on active duty in the rank of lieutenant colonel.

2.  In a letter, dated 13 July 2010, he was informed by the VA that he had been approved to transfer the unused Post-9/11 GI Bill benefits to members of his immediate family.  The transfer request date was 12 July 2010 and the transfer status effective date was established as 13 July 2010.

3.  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 Career Systems Division, who stated the applicant meets the basic requirements to transfer his benefits, but his request to have his effective date of transfer backdated cannot be granted.  The opinion pointed out that Public Law 110-252, subsection 3020, paragraph (b)(1) clearly states when respective service remaining requirements begin and this is also highlighted in the Army's policy implementation which was dated and released on 10 July 2009.

4.  The opinion 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.

5.  The advisory opinion was provided to the applicant for comments and/or rebuttal.  No response was received.

6.  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 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

7.  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.

8.  Public Law 110-252, section 3020, paragraph (b)(1), states any member of the Armed Forces who, while serving on active duty or as a member of the Selected Reserve at the time of the approval by the Secretary concerned of the member's request to transfer entitlement to basic educational assistance under this section, has completed 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces is eligible.

9.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 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, as follows:

	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 to backdate transfer of educational benefits to his dependents under the Post-9/11 GI Bill to 15 August 2009 has been carefully considered.

2.  Public Law 110-252, section 3020, paragraph (b)(1), states the additional service agreement is entered into at the time of approval by the Secretary concerned of the member's request to transfer entitlements.

3.  He contends the guidance in August 2009 was confusing; however, he waited an additional 11 months to further research the process and complete the transfer.  He failed to establish an equitable basis for relief since the delay in applying for the benefits transfer was solely of his own choosing.

4.  Based on the above, the applicant's request should be denied.

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 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)                                         AR20100022899



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ABCMR Record of Proceedings (cont)                                         AR20100022899



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