IN THE CASE OF:	  

		BOARD DATE:	    10 January 2012

		DOCKET NUMBER:  AR20110012518 


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:

* he began the TEB process to his children prior to his retirement without success 
* he was misinformed about the TEB process by multiple agencies
* on 1 August 2009, during his final weekend drill with his unit he was informed of the process for transferring his education benefits 
* completion of the transfer was delayed due to complications with converting from the Reserve Education Assistance Benefits Program (REAP) to the Post 9/11 GI Bill
* he submitted his REAP conversion application for the Post 9/11 GI Bill on 1 August 2009 while he was still a member of the Selected Reserve
* he retired and was transferred to the Retired Reserve on 2 August 2009

3.  He provides:

	a.  a self-authored statement;

	b.  pages 1 and 2 of a Department of Veterans Affairs (VA) Form 22-1990 (Application for VA Education Benefits) which show he submitted his REAP conversion request 1 August 2009;

	c.  a Certificate of Eligibility from the VA, dated 20 October 2009, showing he had 36 months of full time benefits and was entitled to 60 percent of the benefits payable under the Post 9/11 GI Bill program;

	d.  an SGLV Form 8286 (Servicemembers' Group Life Insurance Election and Certification), dated 12 July 2008, whereon he indicated he had three dependent children;

	e.  a DD Form 93 (Record of Emergency Data), dated 12 July 2008, whereon he indicated he had three dependent children; and

	f.  a screenshot of his Submit Transfer Request page of the Department of Defense TEB internet website, dated 3 January 2011, which indicates he has no eligible family members registered.

CONSIDERATION OF EVIDENCE:

1.  After completing 25 years of service in the Massachusetts Army National Guard and the U.S. Army Reserves (USAR), the applicant was transferred to the Retired Reserve by reason of 20 or more qualifying years of service for retired pay at age 60 in the rank/grade of lieutenant colonel (LTC)/O-5.  Orders 09-126-00002 issued by Headquarters, USAR Readiness Command, Fort Jackson, SC, on 6 May 2009, show he was released from his current assignment in the Selected Reserve and assigned to the Retired Reserve effective 2 August 2009.

2.  During the processing of this case, on 11 October 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who recommended approval of the applicant's request.  The advisory official stated:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

	b.  the applicant is eligible to transfer benefits under the Post 9/11 GI Bill TEB Program to his dependents because he left the service within 90 days of the implementation of the program.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers that left service during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service.

	c.  the applicant's last day in service was 1 August 2009 and he would have been eligible to transfer the benefit if he transferred before he left the service.

	d.  although the TEB online database shows the applicant has no eligible dependents, the Defense Eligibility Enrollment Reporting System (DEERS) database confirms he has four eligible dependents.  The applicant did not complete the requirements in the TEB online database because he claimed he was not aware of the requirement to convert from the REAP to the Post 9/11 GI Bill prior to executing a transfer in TEB.  He submitted a VA Form 22-1190e prior to his retirement, but this does not authorize him to transfer his benefits.

3.  A copy of the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  He acknowledged receipt of the advisory opinion and concurred with the advisory official's comments.

4.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to his transfer to the Retired Reserve but did not do so.  The program was implemented in July 2009.  He was transferred on 2 August 2009.  Prior to his transfer, he attempted to apply for the transfer of benefits; however, he was unsuccessful.
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:

* 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
* 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 was transferred to the Retired Reserve on 2 August 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active 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 his transfer to the Retired Reserve.  

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 transfer to the Retired Reserve, 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)                                         AR20110012518





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ABCMR Record of Proceedings (cont)                                         AR20110012518



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