IN THE CASE OF:	  

		BOARD DATE:	    21 April 2011

		DOCKET NUMBER:  AR20100025000 


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, through his Member of Congress, in effect, that his records be corrected to show his educational benefits were transferred to his family members in accordance with the Transfer of Education Benefits (TEB) under the Post-9/11 GI Bill based on an exception to policy.  He also requests a personal hearing.

2.  The applicant states he received incomplete and inaccurate information from the Army personnel regarding the transfer of educational benefits during the very early implementation period of the program before he departed active duty in 2009.  This resulted in his inability to transfer his benefits even though he was eligible.  He out processed through the Retirement Services Office (RSO) at Fort Meade, MD, on 20 July 2009 and began his transition process.  He retired from active duty on 31 October 2009.  He was fully eligible for the Post 9/11 GI Bill for himself.  He applied for and it on 16 October 2009, and he received his Certificate of Eligibility on 21 December 2009.  The information he received from the RSO emphasized that he contact the Department of Veterans Affairs (VA) before departing active duty.  He understood that the transfer of benefits could be completed within 10 years of his retirement.  He did not receive any information that indicated the transfer had to occur while he was on active duty.  Therefore, he did not complete the process to transfer his benefits while on active duty.  He adds that there was confusion and misinformation regarding the implementation of this program.  Army personnel failed to accurately advise him and countless others in his situation.  By the time he figured out the problem, he was no longer on active duty.  He then began making contact with various agencies to rectify the problem.  Everyone pointed to the Army G-1 office.  But the Army G-1 office was unresponsive because he was no longer on active duty.

3.  The applicant provides:

* Self-authored timeline of actions
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 006-0001, dated 6 January 2009 (retirement orders) and Orders 189-0002, dated 8 July 2009 (revocation orders)
* Orders 189-0003 (retirement orders), dated 8 July 2009
* Army Continuing Education System counseling memorandum, dated 20 July 2009
* VA Post 9/11 Veterans Education Assistance Booklet
* VA Form 22-1990 (Application for VA Education Benefits) (self)
* VA printout of his online application
* Email Notification of VA Form 22-1990
* Email exchange with other individuals
* VA Certificate of Eligibility letter
* Post 9/11 GI Bill transferability information
* Internet printout, dated 24 January 2010
* Post 9/11 GI Bill Transferability Policy Quick Reference
* Letters to/from his Member of Congress
* Letter from his Commanding General to the Director of the Army Staff
* Letter from the Deputy Chief of Staff (DCS), G-1

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a U.S. Army Reserve second lieutenant and executed an oath of office on 18 May 1983.  He served on active duty in various command and staff positions within and outside of the continental United States and attained the rank of colonel.

2.  His records show he underwent a pre-separation briefing on 23 April 2009 wherein he checked the "No" block in item 13 (Education/Training) of his DD Form 2648 (Preseparation Counseling Checklist) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.



3.  On 20 July 2009, he certified that he had received counseling on Veterans Educational Assistance and that he understood he had up to 36 months of educational benefits and 10 years from the date of separation from active duty to use his benefits.

4.  On 16 October 2009, he completed an online application for VA Education benefits for Post 9/11 GI Bill benefits in lieu of Montgomery GI Bill Educational Assistance Program (MGIB) benefits for himself.  He indicated that his education objective was to receive a doctorate of civil engineering and that he would begin his education on 30 September 2012.

5.  There is no evidence in his records that shows he applied for the transfer of educational benefits to his dependents.

6.  On 31 October 2009, he was honorably retired and placed on the Retired List in his retired rank of colonel on 1 November 2009.  He was credited with 26 years, 3 months, and 21 days of creditable active service.

7.  He submitted a self-authored timeline of events and several emails that were written between him and various individuals regarding the Post 9/11 GI Bill transfer of benefits.  He also submitted various booklets, internet literature, and letters he was provided regarding the same issue.

8.  On 11 February 2011, an advisory opinion was obtained in the processing of this case.  An official in the Office of the DCS, G-1, stated the applicant is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program to his dependents because he separated from the Army prior to the implementation of the program.  Army and DOD 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 are retired or separated from the Army to transfer Post-9/11 GI Bill benefits.  The official recommended disapproval of the applicant's request and stated this opinion is based on legal authority outlined in section 3319(b) of Public Law 110-252.

9.  The applicant was provided a copy of this advisory opinion and responded with a rebuttal on 10 April 2011 wherein he stated that he disagreed with the advisory opinion.  He essentially raised four issues:

* He retired after the program was implemented; not before
* He received no information regarding transferability of his educational benefits

* The U.S. Marine Corps at Quantico supported appeals submitted by 
5 Marines
* The major public campaign did not reach everyone and was untimely

10.  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 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.

11.  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.

12.  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.  

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states, in pertinent part, the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.
DISCUSSION AND CONCLUSIONS:

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

2.  The applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence/arguments provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but did not do so.  The program was implemented in July 2009.  The applicant retired on 31 October 2009.  Prior to retirement, he submitted an application to the VA wherein he requested entitlement to the Post 9/11 GI Bill benefits for himself and indicated he intended to start his doctorate degree in engineering.  He did not apply for the transfer of benefits while on active duty.

4.  DOD, the 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) have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible.  

5.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the DOD website, the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may have not conducted proper counseling.  


6.  The applicant's retirement date was 31 October 2010.  It is reasonable to presume he may have signed out on transition leave and/or permissive temporary duty up to 90 days earlier or 1 August 2009.  It is also reasonable to presume that had the applicant known of the procedure to transfer his benefits while on active duty, he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.  

BOARD VOTE:

__X_____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 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)                                         AR20100025000



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ABCMR Record of Proceedings (cont)                                         AR20100025000



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