IN THE CASE OF:	  

		BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110009936 


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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his dependents. 

2.  He states that he departed Fort Sill, OK on 6 September 2009 on terminal leave.  He adds that at the time of his leave, the education center did not have the paperwork needed to transfer his entitlements under the Post-9/11 GI Bill to his daughter.

3.  He provides two DA Forms 31 (Request and Authority for Leave) and his
DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  After completing 21 years, 2 months, and 17 days of active service, the applicant retired from the Army on 30 September 2009.

2.  His DA Forms 31 show he was placed on permissive temporary duty (PTDY) from 9 July 2009 to 18 July 2009 and transition leave from 19 July 2009 to
30 September 2009.   

3.  An advisory opinion was obtained on 24 August 2011 in the processing of this case.  An official in the Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, recommended denial of the applicant's request to transfer benefits under the Post-9/11 GI Bill transferability program unless he can provide evidence showing he attempted to transfer his benefits prior to leaving military service and/or he was given false information by a reliable source about TEB.  The official stated:

	a.  Army and DoD policy require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits.

	b.  Those policies are based on requirements established in law.  Consequently, the Army does not have the legal authority to grant an exception to policy.

	c.  This opinion is based on the legal authority outlined in section 3319(b) of Public Law 110-252.  Specific Congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status.

4.  The applicant was provided a copy of this advisory opinion and responded with a rebuttal that was received at this office on 23 September 2011.  He explained the dates of his PTDY and transition leave and the problems he encountered from the education center at Fort Sill in trying to transfer his education benefits to his daughter.  He offered, that each time he talked to the counselors, he was informed that they had no information at the time.  He also said that he talked to the Department of Veterans Affairs (VA) representative on numerous occasions upon his arrival at home concerning the TEB to his daughter to no avail.

5.  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.

6.  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.  

7.  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 contends that his records should be corrected to approve his request to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his daughter.  He maintains that he attempted to transfer his education benefits to his daughter prior to retirement and while on PTDY and transition leave, to no avail. 

2.  The Post-9/11 GI Bill was implemented on 1 August 2009, and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  
3.  The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement, but did not do so.  The program was implemented in August 2009.  He retired on 30 September 2009 and was on PTDY and transition leave from 9 July 2009 to 30 September 2009.  While on PTDY and transition leave, he attests that he inquired about having his education benefits transferred to his daughter, but due to the limited knowledge of the implementation procedures by the education counselors and the VA representatives, this did not occur.

4.  Notwithstanding the advisory opinion, and in view of the fact that information on transfer application procedures was not fully available at the time he began his transition, 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 on 1 August 2009, upon implementation of the program.  

5.  In view of the above, 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 that 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 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)                                         AR20110009936





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009936



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1