BOARD DATE:	  1September 2011

		DOCKET NUMBER:  AR20110001229 


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 to transfer his education benefits to his dependent daughter under the 
Post-9/11 GI Bill Transferability Program.

2.  He states, in effect, that when he retired in August 2009 the Post-9/11 GI Bill was new, he was not told, and he did not know, he had to initiate the transfer of his benefits prior to retirement.  He also states that during his retirement processing, he attended the Department of Veterans Affairs (VA) briefing, but the Post-9/11 GI Bill had not been approved yet and the VA representative would not discuss any of the details.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Army).

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains Orders 022-0621 Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, dated 22 January 2009, which show he had an approved retirement date of 31 August 2009.

2.  The applicant's DD Form 214 shows he retired in the rank of sergeant first class/E-7 on 31 August 2009.  It further shows he completed 21 years, 10 months, and 4 days of active military service.  

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 Professional Development Branch, who recommended administrative relief based on the details below because the applicant left the service within 90 days of the implementation of the program.  

	a.  He was honorably retired on 31 August 2009 which was within 90 days after the implementation of the Post-9/11 GI Bill.  He had more than 21 years of service prior to retirement; therefore, he would not have incurred an additional obligation.  

	b.  The transfer of education benefits (TEB) online database shows he had one eligible dependant (daughter) enrolled in DEERS.  As a result he was eligible to transfer his benefits to this dependent (daughter) or his spouse (if he completed the request before leaving the military).

	c.  The TEB website shows no action was taken by the applicant to transfer any benefits.  However, he claims he did not complete the requirements in the TEB online database because he was not aware of the requirement to transfer his benefits prior to leaving the military.

4.  The advisory opinion further stated that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements to transfer their benefits prior to leaving the military.

5.  The applicant responded to the advisory opinion on 24 June 2011.  He stated that had he known about the specifics related to the transfer of his education benefits to his daughter he would have done so prior to retirement.  He claims the timing of his retirement, implementation of the Post-9/11 GI Bill, and a family crisis resulted in his daughter not being eligible for the transfer of education benefit.  He further points out that he attended the VA briefing in March or April 2009 but the instructor could not speak to the implementation of the 
Post-9/11 GI Bill.  He claims he attended the education briefing at Fort Knox in March 2009; however, at the time the education office did not have information regarding the Post-9/11 GI Bill and the Retirement Services Officer had no information on the program during his final out-processing on 31 July 2009, which was prior to implementation of the program. 

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 of 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.  The General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service.

	b.  Service members also must have served on active duty in the Regular Army; 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 service.  

8.  The program guidance stipulates if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013, and agrees to serve the additional period as specified below, the service member is entitled to transfer benefits to his 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 contention that his records should be corrected to show he applied for and was approved to transfer his Post-9/11 GI Bill benefits to his dependent daughter prior to retirement on 31 August 2009, based on a lack of information being available, has been carefully considered and found to have merit.  

2.  The available evidence shows he was fully eligible for transfer of his education benefits to his dependents under the Post-9/11 GI Bill, but he contends he was not aware he needed to be on active duty to transfer the benefits to his dependents.  

3.  The advisory opinion recommends administrative relief because he left the service within 90 days of the implementation of the program.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements to transfer benefits prior to leaving the military.  The applicant retired on 31 August 2009, which was within 90 days of implementation of the program.

4.  In view of the above and in the interest of equity, his request for relief should be granted.

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 his Post-9/11 GI Bill benefits to his dependent 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)                                         AR20110001229



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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