BOARD DATE:	  17 November 2011 

		DOCKET NUMBER:  AR20110008578 


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 November 2009.

2.  The applicant states he retired on 30 November 2009 after serving 20 years of active service.  He thought he was eligible to transfer his educational benefits to his wife and four children equally and he has now been informed that he had to do so while on active duty.  He states he was never informed during his out-processing that such a transfer had to occur while he was on active duty or he would have done so.

3.  The applicant provides copies of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the education services officer
* his retirement orders and pre-separation counseling checklist 
* his clearance record
* his permissive temporary duty (TDY) and terminal leave forms

CONSIDERATION OF EVIDENCE:

1.  After 3 years of prior active service, the applicant again enlisted in the Regular Army on 9 October 1992 and he remained on active duty through a series of continuous reenlistments.  He was promoted to pay grade E-7 on 1 March 2002.

2.  On 8 September 2009, he departed on permissive TDY until 11 September 2009.  On 6 October 2009, he departed on terminal leave.  He was honorably retired on 30 November 2009 and placed on the Retired List effective 1 December 2009.  He completed 20 years, 1 month, and 22 days of active service.

3.  The letter from the education services officer provided by the applicant indicates it is very likely that complete and accurate information regarding the Post-9/11 GI Bill transferability program was not available given the time frame of the applicant's out-processing

4.  During the processing of this case an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Department of the Army Office of the Deputy Chief of Staff, G-1, who stated the applicant was not eligible to transfer benefits under the Post-9/11 GI Bill to his dependents as he separated from military service prior to transferring his benefits.  He further states the Army, Department of Defense, and Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues and that information on the program and subsequent transfer of entitlements were published well in advance of the implementation date of 1 August 2009.  Additionally, the applicant's retirement date of 30 November 2009 was not within 90 days of implementation of the program.

5.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he did depart the Army within 90 days of implementation of the program as he took permissive TDY and terminal leave beginning on 6 October 2009 which was within 90 days of the 1 August 2009 start date.  In any event, he was not informed that he had to make his decision while on active duty as attested to by the education services officer.  Additionally, he attended his retirement separation briefing on 22 June 2009 which was before the program start date.  Accordingly, his benefits should be assigned to his spouse and four children in equal increments (20 percent each).

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 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 the 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.

8.  The program guidance stipulates that 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 for correction of his records to show he applied for and the Army approved transferring his education benefits under the Post-9/11 
GI Bill to his dependents prior to his retirement from active duty on 30 December 2009 has been carefully considered and is found to have merit.

2.  Notwithstanding the basis for the denial cited in the Office of the Deputy Chief of Staff, G-1, advisory opinion, the ABCMR has generally accepted that confusion existed at Army Education Centers on the proper procedures to implement the program and that there was a high probability that some Soldiers were not informed or were improperly informed during the period 1 August to      1 November 2009.  

3.  Given that the applicant was on terminal leave on 6 October 2009 it appears reasonable to presume that he was not informed he had to make his transfer of education benefits while he was still on active duty.  This is especially true given the comments from the educations services officer indicating the applicant likely was not briefed and that the applicant's retirement briefing occurred before the    1 August 2009 start date of the program.

4.  It is also reasonable to presume that he very well could have fallen through the cracks and was not notified given the timing of the implementation of the program and the applicant's terminal leave and retirement – and it is not reasonable that he would not have enrolled while he was on active duty if he had known he was required to do so given that he had five dependents that were eligible to receive his benefits.

5.  Given the circumstances in this case, it would serve the interest of equity to correct his records to show 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 education benefits in equal shares 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)                                         AR20110008578



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ABCMR Record of Proceedings (cont)                                         AR20110008578



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