BOARD DATE:  10 January 2012

		DOCKET NUMBER:  AR20110012034 


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 correction of his records to show he elected to transfer his Post-9/11 GI Bill educational benefits to his dependents.

2.  The applicant states:

* he was recently informed of an additional step that is required in order to transfer his Post-9/11 GI Bill educational benefits to his dependents – specifically, logging onto the Transfer of Educational Benefits (TEB) website and allocate a number of eligibility months for each dependent
* he was not aware of this additional requirement prior to his retirement
* he finds timing to be the root cause of this issue
* in the August/September 2009 timeframe, he began attending the required Transition Assistance Program (TAP) briefings for transition
* his transition began before adequate processes were in place and proper education was provided to those responsible for administering the Post-9/11 GI Bill Program; therefore, he was not provided adequate information necessary to make this critical decision
* he has now been advised that it is too late to transfer his benefit, which will put his children's educational futures in jeopardy
* he is not asking for anything he did not earn through his dedicated service
* he would have served any additional service commitment had he known there would be one – that is not the case
* he fully met all service requirements necessary to transfer his benefit to his dependents
* his family deserves this benefit and he asks the Board's assistance in receiving it

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the Department of Veterans Affairs (VA), Buffalo, NY, dated  4 June 2009, subject: Eligibility under the Post-9/11 GI Bill 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 November 1988.  He completed training and was awarded military occupational specialty 31C (Single Channel Radio Operator).  He served through numerous reenlistments, in a variety of stateside and/or overseas assignments of increased responsibility, and attained the rank of master sergeant (MSG).

2.  Orders 124-0012, Headquarters, Fort Myer Military Community, dated 4 May 2009, ordered his reassignment to the Fort Myer Transition Center, Fort Myer, VA, effective 31 March 2010.  Orders 124-0014, Headquarters, Fort Myer Military Community, dated 4 May 2009, ordered his release from active duty, with placement on the Retired List the following day, effective 31 March 2010.

3.  On 15 May 2009, he underwent a pre-separation briefing, wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), in anticipation of his upcoming retirement.  In accordance with the form's instructions, for those items checked "Yes," the separating service member has a mandatory requirement to receive further information or counseling, or attend additional workshops, briefings, classes, etc.

4.  His DA Form 31 (Request and Authority for Leave), indicating the date on which his terminal leave commenced, is not available for review, so the date he signed out of his unit on transition leave cannot be determined.  His DA Forms 31 for Permissive Temporary Duty (TDY) indicate he was in a Permissive TDY status during the period 17 December 2009 through 13 January 2010.  

5.  On 31 March 2010, he was honorably retired and on 1 April 2010, he was placed on the Retired List in his retired rank of MSG.  His DD Form 214 confirms he was credited with the completion of 21 years, 4 months, and 29 days of faithful and honorable service.


6.  There is no indication that, while he was on active duty, he made application to transfer his educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  The advisory official recommended not granting the applicant administrative relief because he did not transfer his benefit prior to his last day of service.

8.  On 9 September 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  

9.  The applicant responded with a rebuttal, wherein he stated he reviewed the advisory opinion and rejected it as a viable reason for the unfavorable recommendation.  He stated his objection to 2 separate points in the advisory opinion:

   a. "A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left service during the implementation phase (first 90 days) of the program."  The applicant stated his belief that 90 days is not a viable timeframe, given the amount of consideration needed for such a decision, and the fact that transition activities can begin as early as 1 year prior to a Soldier's retirement date.  He further stated that he completed his TAP briefings prior to the dissemination of accurate program guidance, and his Post-9/11 GI Bill Eligibility Letter contained no additional information related to the transfer of his benefit to his dependents.  

   b. "A Soldier must be currently on Active Duty or a member of the Selected Reserves at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  MSG (Retired) Sxxxx' last day in service was          31 March 2010.  He would have been eligible to transfer the benefit if he transferred before he left service."  The applicant concedes he was on active duty until 31 March 2010; however, he contends he started clearing much earlier in the process, on 3 December 2009.  He states that his thoughts and efforts after that date were focused on the next chapter of his life and he did not have time or the ability to re-attend TAP briefings.  

10.  With his request, he submitted his DD Form 2648, a letter from the VA, dated 4 June 2009, subject: Eligibility under the Post-9/11 GI Bill, and his DA Forms 31 for Permissive TDY, covering the period 17 December 2009 through  13 January 2010.
11.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he elected to transfer his Post-9/11 GI Bill educational benefits to his dependents.  

2.  He 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.  He retired on 31 March 2010.  Prior to retirement, while still on active duty, he did not apply for the transfer of educational benefits.

3.  He contends sufficient information was not available to the field in time to make this important decision regarding the transfer of his educational benefits; however, the program was implemented in July 2009 and he didn't begin clearing his unit until December 2009.  Therefore, there was at least a 120-day window after program implementation in which he could have transferred his benefit. 
4.  The DOD, 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.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly 9 months after the program was implemented.

5.  The applicant's service and his sincerity are not in question; however, since the applicant retired on 31 March 2010, nearly 9 months after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  Therefore, he is ineligible to transfer benefits. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  _x_______  _x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20110007920



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012034



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1