IN THE CASE OF:	  

		BOARD DATE:	    1 November 2011

		DOCKET NUMBER:  AR20110006521 


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 before he retired from active duty on 31 October 2009 in order to transfer his education benefits to his children.

2.  He states he believes he received incomplete and inaccurate information from the Army regarding transfer of Post 9/11 GI Bill benefits during the early implementation of the program prior to his retirement.  This resulted in his inability to obtain this benefit for which he is eligible.

	a.  He states he completed most of his out-processing remotely due to teaching at Northern Michigan University prior to his retirement.  He completed out-processing through the Retirement Services Office at Fort Belvoir, VA on 3 August 2009.

	b.  He states he applied for the Post 9/11 GI Bill benefit on 16 October 2009 prior to his retirement and he received his Department of Veterans Affairs (VA) certificate of eligibility.  He further states he understood he could transfer benefits at any time after receiving his VA certificate of eligibility for education or training under the post 9/11 GI Bill.  He adds that following his retirement he traveled extensively with his family until August 2010 at which time he applied to transfer benefits to his children.  He states it was at this time he realized the transfer was to have taken place while he was still on active duty.


3.  The applicant provides:

* a chronology of events
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Installation Management Command Orders 76-0044, dated 17 March 2009
* Installation Management Command Orders 76-0043, dated 17 March 2009
* an internet printout confirmation of application for education benefits to the VA Regional Office, Buffalo, NY submitted on 15 October 2009
* an email from the Army G-1 Post 9-11 GI Bill Team, dated 3 February 2011, indicating he cannot be granted an exception to policy
* a memorandum for the Office of the Director of the Army Staff from the Commanding General of Headquarters, U.S. Army Corps of Engineers, Washington, D.C., subject:  Eligibility for the Post 9-11 GI Bill, dated
13 May 2010

CONSIDERATION OF EVIDENCE:

1.  Orders 76-0043, dated 17 March 2009, reassigned the applicant to the U.S. Army Transition Center, Fort Belvoir with a reporting date of 30 July 2009.

2.  Orders 76-0044, dated 17 March 2009, retired the applicant from active duty effective 31 October 2009 with 23 years, 5 months, and 3 days of creditable active service.  He was placed on the retired list on 1 November 2009.

3.  The DD Form 214 he was issued at the time shows he retired from the Army on 31 October 2009 in the rank/grade of lieutenant colonel (LTC)/O-5.

4.  He provides a timeline of the events that transpired:

	a.  22 June 2009:  Directive-Type Memorandum 09-003: Post-9/11 GI Bill signed.

	b.  29 July 2009:  Began travel from Northern Michigan University to U.S. Army Transition Center at Fort Belvoir.

	c.  3 August 2009:  Completed final out-processing at Fort Belvoir.  Out-processing consisted of final transportation and finance meetings.

	d.  4 August 2009:  Began permissive temporary duty and transition leave.

	e.  15 October 2009:  Completed VA benefits application via the internet for benefits; understood that after benefits were approved they could be transferred to family members.

	f.  26 August 2010:  Began query of the VA, Army G-1, and Department of Defense (DOD) regarding transfer of benefits.

	g.  23 September 2010:  Informed by Army G-1 that transfer of benefits had to have occurred while Soldier was on active duty.

5.  During the processing of this case, on 19 July 2011, an advisory opinion was obtained from the Army, Office of the Deputy Chief of Staff (ODCS), G-1.  The advisory official stated that Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  The law further limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve.  The advisory official indicated that based on the details provided below the ODCS,
G-1 recommended administrative relief for the applicant because he left the service during the first 90 days of the implementation of the program.  The official 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 that left the service the first 90 days were not fully aware of the requirement to transfer prior to leaving the military service.  The advisory official further stated:

	a.  the applicant had more than 23 years of service upon his retirement and would have been eligible to transfer the benefit to either his spouse or children, if he had transferred it before he left the service.

	b.  Transfer of Education Benefits (TEB) online database shows the applicant did not complete the requirements in the TEB online database; the applicant claimed he was not aware of the requirement to transfer prior to leaving the service.

	c.  a Soldier must agree to serve any prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If the applicant had transferred his benefits prior to leaving military service he would not have incurred an additional service obligation.

	d.  there was no evidence the applicant had an adverse action in his record and that he received the required honorable discharge.


	e.  a Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, DOD, and the 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 TEB.  The applicant's last day of service was
31 October 2009, which was within 90 days after the program's implementation.

	f.  a Soldier must initially request to transfer benefits on the DOD's TEB online database.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective family member must then submit an application for VA education benefits (VA-Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits.  The applicant claimed he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	g.  changes to the number of months allocated to family members can be made at anytime, to include once the Soldier leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.

6.  On 20 July 2011, the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  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.  Section 3319 provides that service members with an approved retirement date after 1 August 2009 and before 1 July 2010 had no additional service requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had more than 23 years of service upon his retirement, had no additional service requirement, no evidence of any adverse action, and would have been eligible to transfer the benefit to either his spouse or children, if he had transferred it before he left the service.

2.  Evidence clearly shows he initiated the process of certifying his eligibility for Post 9/11 GI Bill benefits prior to departing active duty by submitting a VA Form 22-1990 on the internet on 15 October 2009.

3.  In view of the fact the Post 9/11 GI Bill Transferability Program was a new program, it is not unreasonable to presume there were differing interpretations of the implementing instructions by the education counselors at installation level at the onset of implementation.  The TEB online database shows he did not complete the requirements to apply to transfer educational benefits in the TEB online database.  As such, it is particularly plausible due to his transition from the military in the August 2009 timeframe, remote out-processing, and the extensive travel with his family until August 2010 that he was unaware of the requirement to complete an application to transfer his education benefits while he was still on active duty.

4.  Therefore, in the interest of equity and fairness, it would be appropriate to correct his record to reflect he applied to transfer his education benefits under the Post 9/11 GI Bill Transferability Program prior to 31 October 2009.


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 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 authorized family members prior to 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)                                         AR20110006521



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ABCMR Record of Proceedings (cont)                                         AR20110006521



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