IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20110007954 


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 reconsideration of his earlier request for an exception to policy to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse and two daughters.

2.  He states, in effect, that he is submitting additional documentation to support his request.  He retired on 1 September 2009 after 28 years of service and met eligibility requirements to TEB with no further service.  Although he was aware of the ability to TEB, and planned to do so, he was not aware he needed to accomplish TEB while still on active duty.  He states that he is not alone in this regard.  He is in contact with approximately 15 other Soldiers who retired the same time, who were likewise not aware of the stipulation requiring any transfer while still on active duty.  He estimates there are dozens, if not hundreds, of Soldiers who retired from 1 September 2009 to at least several months later “when word was getting out regarding this point” who were similarly affected.  Clearly there is a problem in this many retiring Soldiers failing to make what is an obvious choice for many of them.  

3.  He continues that although the Department of Defense (DOD), Army, and Department of Veterans Affairs (DVA) disseminated information regarding the Post-9/11 GI Bill implementation in 2009, little to none of this information clearly communicated the requirement to accomplish the TEB while still on active duty.  As he went through pre-retirement counseling and briefings during the period May 2009 through July 2009, there was still lack of clarity on the rule regarding TEB and those providing such briefings certainly were not aware of the specific rules.  He states in defense of those responsible for such things, the program was large, the timeline for implementation was short, the specific rules were new, and the specifics were somewhat unusual.

4.  He provides a news article from the "Military Times" Magazine titled "Retirees bid for another chance to transfer GI Bill benefits."

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100011333 on 14 September 2010.

2.  The applicant provides new evidence in support of his previous request that requires reconsideration.  

3.  Orders 097-0050, dated 7 April 2009, which amended Orders 295-0050, dated 21 October 2008, both issued by U.S. Army Garrison, Fort Eustis, VA, show the applicant had an approved retirement date of 31 August 2009.

4.  His DD Form 214 shows he was retired, in the rank of colonel/0-6, on 
31 August 2009.  

5.  He provided a news article from the Military Times Magazine, which indicates, in pertinent part, that thousands of military retirees who were eligible to TEB to family members but did not learn that until it was too late to apply were hoping Congress would give them a second chance to TEB.  The article further stated, “People who retired before Aug. 1, 2009, also have complained about being denied transfer rights for the new GI Bill.  But those who retired after the new program took effect argue that they deserve special attention because DOD, VA and other services did a poor job of explaining the program.”  The applicant was quoted in the article as stating, in effect, had proper guidance on the transfer rights from the onset of the program had been properly given, he would have known that he needed to give at least one month of benefits to each of his dependents prior to his retirement and he would have done so.     

6.  During the processing of this case an advisory opinion was obtained from the, Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch.  The Chief, Enlisted Professional Development Branch, indicated that the applicant met eligibility requirements to TEB prior to his retirement and recommended administrative relief for him because his last day in the service was 31 August 2009, which was within the first month after the program’s implementation.  She further stated that although significant measures were taken to disseminate the information, Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service.  

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 of 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, and 

	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 duty service.  

9.  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, 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 31 August 2009 has been carefully considered and found to have merit.  

2.  It is acknowledged that based on public law his previous request was denied. However, his argument is valid, as acknowledged by the current advisory opinion.  He retired within the first month after the implementation date of the program.  The TEB program was new at the time and that detailed instructions for transfer of entitlements was not made clear.  It appears that there was insufficient guidance on how to properly transfer his benefits under the 
Post-9/11 GI Bill to his dependents prior to his retirement.  

3.  In view of the fact that information on transfer guidance was not fully understood prior to his retirement, it would serve the interest of equity and fairness to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill Transferability Program upon implementation of the program.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20100011333, dated 14 September 2010.  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)                                         AR20110007954





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110007954



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1