IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100024542 


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 approval of Transfer of Educational Benefits under the Post-9/11 GI Bill to his dependent daughter.

2.  He states:

* he received bad information from his education counselor at Fort Hood, TX
* he applied for the Post-9/11 GI Bill in November or December 2009
* he inquired about this education benefits when he was clearing from the Education Office at Fort Hood, TX on 19 April 2010 
* he was informed by his education counselor to wait for a letter approving the benefits and to contact his State representative
* he retired on 1 July 2010 at Fort Hood, TX
* he never received the first letter of eligibility for the benefits, but he received the second letter on or about 18 August 2010
* he now understands the transfer of benefits should have been done prior to separating from the military 

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from an Education Services Officer.  



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 June 1986.  He was honorably retired in the rank of sergeant first class on 30 June 2010 and he was credited with 24 years and 25 days of active military service.

2.  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, Headquarters, Department of the Army, who stated the applicant was not eligible to transfer benefits under the Post-9/11 GI Bill program because he separated from military service prior to executing the transfer.  Transfer of 
Post-9/11 GI Bill benefits was not an entitlement, but rather an incentive used by the Service Secretary to recruit and retain service members.  Army and Department of Defense policy require 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 in 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 Army, Department of Defense, and Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements were published well in advance of its implementation date of 1 August 2009.  Nothing in the applicant's records indicated he attempted to transfer his benefits.  The official recommended disapproval of the applicant's request.  The applicant was provided a copy of this advisory opinion; however, he did not respond within the allotted time frame.

3.  He provided a letter, dated 13 October 2010, from the Education Services Officer, at Fort Hood, TX, who acknowledged he had been provided erroneous information and supported the applicant's request to be given the opportunity to transfer the benefits as he wanted to at the time he was clearing the Education Center in April 2010 and a waiver to allow this transfer to take place.

4.  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.

5.  Public Law 110-252, section 3319 provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs 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 also 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.

6.  The program guidance stipulates that if a service member becomes retirement eligible during the period 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 is required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is 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 educational benefits under the 
Post-9/11 GI Bill to his dependent child prior to his retirement from active duty on 30 June 2010 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 Education Services Officer at Fort Hood, TX, acknowledged the applicant had been provided erroneous information regarding the 
Post-9/11 GI Bill and recommended the applicant be given the opportunity to transfer the benefits.  This clearly shows the applicant initiated the process of certifying his eligibility for Post-9/11 GI Bill benefits prior to departing active duty.

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

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 dependent child prior to his retirement, provided all other program 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)                                         AR20100024542



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ABCMR Record of Proceedings (cont)                                         AR20100024542



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