BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110011514 


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 to transfer his Post-9/11 GI Bill Education Benefits (TEB) to his dependents as an exception to policy.

2.  The applicant states it has come to his attention that the Board has approved similar cases under the exact same circumstances as his, for Soldiers who retired within 90 days of the program implementation.  As in his case, those other Soldiers received incomplete information from the Army during their transition into retirement.  He faced the same issues and challenges as he transitioned into retirement.

3.  The applicant provides a copy of his original application, argument, and supporting forms and statements and the previous Record of Proceeding.

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 AR20100011842 on 9 December 2010.

2.  The applicant provides a new argument which was not previously reviewed by the ABCMR.  It is considered new evidence and as such warrants consideration by the Board.

3.  The applicant was appointed as a U.S. Army Reserve second lieutenant and executed an oath of office on 24 July 1985.  He entered active duty on 26 September 1985, served in a variety of stateside and overseas assignments, and attained the rank of colonel.

4.  He underwent a pre-separation briefing on 31 December 2008 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

5.  On 31 October 2009, he was honorably retired and placed on the Retired List in his retired rank of colonel on 1 November 2009.  He was credited with 24 years, 1 month, and 5 days of creditable active service.

6.  On 9 September 2011, an advisory opinion was obtained in the processing of this case.  An official in the Office of the Deputy Chief of Staff, G-1, recommends approval of the applicant's request because he left the military within 90 days of implementation of the program.  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 September 2009.  The applicant retired on 31 October 2009.  He would have been eligible to transfer the benefits before he retired.  

	b.  Have 6 years of eligible service to transfer the benefit to a spouse and 
10 years to transfer the benefit to children.  The applicant had 24 years of service.

	c.  Have eligible dependents enrolled in DEERS (Defense Eligibility Enrollment Reporting System).  The applicant had four eligible dependents (spouse and three children) but he did not complete the requirements because he states he was unaware of the requirements.

	d.  Agree to complete any additional service obligation.  The applicant in this case did not incur any additional service obligation.

	e.  Initially request the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Administration (VA).  The respective dependent must then submit an application for VA benefits.  Since the applicant states he was unaware of the program process, none of these steps were taken. 

7.  The official at the Office of the Deputy Chief of Staff, G-1 states that individuals 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 applicant's last active duty date was 31 October 2009 which was within 90 days after the program's implementation.  

8.  The Office at the Deputy Chief of Staff, G-1 also states that changes to the number of months allocated to dependents can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation.  If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

9.  The applicant was provided a copy of this advisory opinion and he did not respond.

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

11.  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.

12.  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.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  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 July 2009.  The applicant retired on 31 October 2009.  Prior to retirement, he did not apply for the transfer of benefits while on active duty.

2.  The DOD, the VA, and the Army conducted a massive public 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.  A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent:  

   a.  be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action flag); and
   
   b.  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 the request, unless retirement eligible.  

3.  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 with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.  

4.  The applicant's retirement date was 31 October 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status 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 was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100011842, dated 9 December 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 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)                                         AR20110011514



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ABCMR Record of Proceedings (cont)                                         AR20110011514



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