IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110012551 


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 in a remote assignment in Bangor, ME with a supporting headquarters at Fort Dix, NJ with a Reserve Officers' Training Corps (ROTC) unit of the Cadet Command
* he completed the Army Career and Alumni Program (ACAP) at Fort Drum, NY and outprocessed from Fort Monmouth, NJ
* he was misinformed about the TEB process by multiple agencies 

3.  He provides:

* A self-authored statement
* A letter from a Member of Congress (MC)
* A letter addressed to his MC from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1
* A letter to his MC
* Email correspondence
* A letter from the Department of Defense, Human Resources Activity, Defense Manpower Data Center, Seaside, CA


* Activation instructions
* A letter from the Department of Veterans Affairs (VA), Regional Processing Office, Buffalo, NY
* A letter addressed to the VA
* A Certificate of Eligibility from the VA
* A memorandum to Eastern Region, Regional Office, Buffalo, NY
* A VA Form 22-1990 (Application for VA Education Benefits) with an attachment

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years, 11 months, and 23 days of creditable active service, the applicant retired by reason of sufficient service for retirement from the Regular Army on 31 August 2009 in the rank/grade of lieutenant colonel (LTC)/O-5.

2.  During the processing of this case, on 1 September 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 31 August 2009 and he would have been eligible to transfer the benefit if he transferred before he left the service.

	d.  the TEB online database shows the applicant has three eligible dependents (spouse and two children).  The applicant did not complete the requirements in the TEB online database because he claimed he was not aware of the requirement to 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 without further 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 retirement but did not do so.  The program was implemented in July 2009.  He retired on 31 August 2009.  Prior to retirement, 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's retirement date was 31 August 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 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)                                         AR20110012551



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ABCMR Record of Proceedings (cont)                                         AR20110012551



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