IN THE CASE OF:	  

		BOARD DATE:	    19 July 2011

		DOCKET NUMBER:  AR20110000230


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 30 September 2009.

2.  The applicant states he received his clearance papers for retirement and cleared the Education Center on 24 April 2009.  He was never advised of the Post-9/11 GI Bill Transferability Program.  He departed on permissive temporary duty(TDY)/terminal leave on 18 June 2009, and remained in that status until his retirement on 30 September 2009.  He further states the Department of Veterans Affairs (VA) did not issue him a certificate of eligibility for Post-9/11 GI Bill benefits until 29 June 2010.

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

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* retirement orders
* DD Form 1172 (Defense Enrollment Eligibility Reporting System Enrollment)
* Fort Knox Education Office memorandum, dated 18 August 2010
* DA Form 137-2 (Installation Clearance Record)
* DA Form 137-1 (Unit Clearance Record)
* two DA Forms 31 (Request and Authority for Leave)
* VA Letter of Eligibility, dated 29 June 2010


* email
* advisory opinion with applicant's response

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains Orders 336-0153, dated 1 December 2008, showing he was reassigned to the U.S. Army Transition Center for separation processing on 15 June 2009 with an approved retirement date of 30 September 2009.  On 18 June 2009, he departed Fort Knox on permissive TDY/terminal leave which carried him through to retirement.

2.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired in the rank of chief warrant officer three/CW3 on 30 September 2009.  It further shows he completed 20 years, 23 months, and 18 days of active military service.

3.  On 29 June 2010, the VA informed the applicant he was entitled to benefits under the Post-9/11 GI Bill.

4.  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, Enlisted Professional Development Branch, which recommended granting administrative relief to the applicant because he was separated from active duty within 60 days of the Post-9/11 GI Bill Transferability Program implementation on 1 August 2009.

	a.  The opinion acknowledged that many Soldiers who left service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.

	b.  The applicant was in service on active duty on 1 August 2009, but he did not transfer his benefits prior to retirement because he professed ignorance of the requirements established by law.

	c.  The applicant was eligible to participate in the program and had dependents eligible to receive those benefits.

	d.  The applicant had more than 20 years of service when he retired; therefore, he would not have incurred an additional service obligation.

5.  The advisory opinion concludes by saying a Soldier should not be granted relief based upon being unaware of the law, program rules, or procedures unless he/she left the service during the program's implementation phase (initial 90 days).  The applicant departed active service on 30 September 2009 which was within 60 days of the 1 August 2009 implementation.

6.  The applicant responded to the advisory opinion on 25 May 2011.  He concurred.

7.  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.

8.  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.

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:

	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.  The evidence of record shows the applicant departed Fort Knox on 18 June 2009 prior to the implementation date of the program.  The evidence indicates he was never properly apprised of the program or its requirements.  

4.  The evidence further shows the applicant established eligibility for the Post-9/11 GI Bill Transferability Program and has dependents eligible to receive those benefits.

5.  In agreement with the Deputy Chief of Staff, G-1, advisory opinion, it would serve the interest of equity to correct the applicant's 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)                                         AR20110000230



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ABCMR Record of Proceedings (cont)                                         AR20110000230



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