BOARD DATE:	    27 September 2011

		DOCKET NUMBER:  AR20110005670


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 and as an exception to policy, correction of his records to show his educational benefits were transferred to his family members in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* the ability to transfer his Post-9/11 GI Bill educational benefit and the terms (time frame for eligibility) for his ability to transfer a portion of this benefit to his children were not conveyed to him at the time of his retirement
* after retirement he attempted to transfer a portion of his benefit to his daughter, but the option was not available
* he called the Department of Veterans Affairs (VA) and it indicated he no longer had the ability to transfer the benefit after retirement
* if this had been communicated before he retired, he would have allocated an amount for later transfer while he was still on active duty
* without approval of this request, he has two young children who will not benefit from the Post-9/11 GI Bill

3.  The applicant provides no additional evidence.


CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Reserve warrant officer of the Army in the rank of warrant officer one on 22 April 1999.  He served on active duty in various staff positions within the continental United States and attained the rank of chief warrant officer three (CW3).

2.  His records show he underwent pre-separation counseling on 16 July 2008, wherein he checked the "Yes" block in item 13a (Education/Training – Educational Benefits) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Members) in anticipation of his upcoming retirement.  Items checked "Yes" are services and benefits to which the service member or spouse desires to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  On 30 September 2009, he was honorably retired and he was placed on the Retired List in the rank of CW3 on 1 October 2009.  His DD Form 214 shows he was credited with 20 years, 7 months, and 15 days of active service.

4.  There is no evidence in his records that shows he received pre-separation counseling concerning the Post-9/11 GI Bill or that he applied for the transfer of educational benefits to his dependents.

5.  On 25 July 2011, an advisory opinion was obtained in the processing of this case.  The Office of the Deputy Chief of Staff, G-1, recommended administrative relief for the applicant because the applicant left the service within 90 days of the program's implementation.  The G-1 official further states:

	a.  The Army, Department of Defense (DOD), and VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits.

	b.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The applicant's last day in the service was 30 September 2009, which was within 90 days after the program's implementation.

	c.  The applicant claims he did not complete the requirements to establish transferability in the TEB online database because he was unaware of the requirement to do so.
6.  The applicant was provided a copy of this advisory opinion on 4 August 2011 for comment.  He did not respond.

7.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual is 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.

8.  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.

9.  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.

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.

2.  The available evidence shows he was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement, but he did not make application do so while on active duty.

3.  The program was implemented on 1 August 2009.  The Army, DOD, and VA conducted a massive public information 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.  Soldiers needed to meet two criteria to qualify to transfer benefits to an eligible dependent:  (a) they must be on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldiers do not have an adverse action flag) and (b) they must 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.

4.  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 by heavy use of the DOD website and the lack of proper log-in credentials for those who had signed out on transition leave within 90 days of the program implementation, as well as by a lack of familiarity with TEB provision policies by education centers and separation counselors.

5.  The applicant's retirement date was 30 September 2009.  It is reasonable to presume he may have signed out on transition leave and/or permissive temporary duty up to 90 days earlier.  It is also reasonable to presume that had he 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 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 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)                                         AR20110005670



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