IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029341 


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 to transfer his education benefits to his dependents before he retired from active duty on 27 August 2010.

2.  The applicant states that in January 2010 he received a Certificate of Eligibility for education under the Post-9/11 GI Bill and since then he has tried unsuccessfully to transfer benefits online numerous times to family members.  He goes on to state that the Army’s online site would never populate the block indicating family members so he could never complete the transfer.  He further states that in order to remedy the situation he contacted his unit, the regional Department of Veterans Affairs (VA), education offices, the VA GI Bill toll-free number, and the Army G1 for assistance and was advised by many that others were having difficulty with the program and to just keep on trying, which he did without success.  He also states that he kept at it until he was medically retired.

3.  The applicant provides:

* Copies of his retirement orders
* A statement of active duty service in support of the Global War on Terror
* A copy of his VA Certificate of Eligibility dated 19 January 2010
* A VA Form 22-0338
* The results of a search of his computer by a computer forensic specialist



CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a U.S. Army Reserve (USAR) colonel when orders were published on 7 July 2009 transferring him to the USAR Control Group (Retired) effective 30 September 2009.  However, those orders were subsequently revoked. 

2.  On 19 January 2010 the applicant was issued a Certificate of Eligibility for education benefits under the Post 9/11 GI Bill.

3.  On 3 August 2010 a Physical Evaluation Board (PEB) convened in Washington, D.C. and determined that the applicant was physically unfit and recommended permanent disability retirement with a 50% disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

4.  On 27 August 2010 he was medically retired by reason of physical disability with a 50% disability rating.  He had served 20 years, 9 months and 5 days of active service and had 38 years, 9 months and 5 days of service for pay purposes.

5.  In the processing of this case a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1 which opines, in effect, that the Department of Defense Transfer of Education Benefits (TEB) website was operational on 29 June 2009 and the applicant was retired in August 2010, a year after the program was implemented.  Officials at the G1 opine that the applicant should only be granted administrative relief if he can show proof that he attempted to transfer his benefits prior to his retirement date or that the Defense Eligibility Enrollment System (DEERS) did not have his dependents registered.  Officials also noted that the applicant contacted the office of the G1 in November 2010 after he had retired.

6.  The advisory opinion was provided to the applicant for comment and he responded with a three-page letter explaining the sequence of events that occurred.  He also provided a letter from a computer forensic specialist who examined his computer and provided results that show agencies the applicant accessed with his computer.

7.  A review of the computer listing provided by the applicant shows that the majority of the applicant’s accesses to VA websites were made in March 2009.



8.  Public Law 110-252, Section 3319, dated 22 June 2008, authorized the transfer of unused educational benefits to family members.  The law provided, in effect, that the Secretary of Defense would prescribe the implementation of the program.  It also provided that eligible participants must be serving as a member of the armed forces when the transfer is executed.

9.  On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum (DTM) 09-003: Post 9/11 GI Bill, which announced that effective 1 August 2009, individuals serving in the armed forces could effect a transfer of the GI Bill benefits.

10.  The Transfer of Education Benefits (TEB) website at https://www.dmdc.osd.mil/TEB is the site Soldiers must use to transfer Post-9/11 GI Bill benefits to their dependents.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted; however, according to the applicable law and regulation he is not eligible to transfer benefits under the Post-9/11 GI Bill Transferability Program.  He was retired on 27 August 2010 and he did not transfer his educational benefits prior to his retirement.  Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits.

2.  While the applicant claims he attempted to effect the transfer prior to his retirement, the applicant had a year between the time the program went into effect and the time he retired to resolve any issues/problems he may have been experiencing.

3.  Although he has shown that he accessed VA websites, he has not shown that he attempted to access the TEB website.  The applicant has contended that he contacted his unit, the VA, and education offices to attempt to resolve his problem but has provided no evidence to support that contention.

4.  Therefore, given that he was a senior officer who had at least a year to resolve any problems he may have been experiencing, it does not appear that he exercised due diligence in this matter and there does not appear to be a valid basis for granting his request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ _   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)                                         AR20100029341





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ABCMR Record of Proceedings (cont)                                         AR20100029341



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