IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110014187 


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, in effect, correction of his records to show he applied for the Montgomery GI Bill Transferability Program before he retired from active duty on 30 June 2010 in order to transfer his education benefits to his spouse and children.

2.  He states he retired after 30 years of active service with educational benefits from the Montgomery GI Bill.  In accordance with his retirement counseling and Department of Veterans Affairs (VA) benefits information at http://www.gibill.va.gov these benefits are transferable to his spouse and children.  However, only the Army can enter his eligibility into the system.

   a.  He states prior to retirement he was told that transference of the Montgomery GI Bill benefits to his spouse and children could be accomplished at any time.  This was different from the Post 9/11 GI Bill which had to be transferred prior to retirement.  He elected not to opt for the Post 9/11 GI Bill and expected to transfer his Montgomery GI Bill entitlements now.

   b.  He states the VA website comparison chart lends credibility to his counseling.  The comparison chart comparing the Post 9/11 GI Bill, Montgomery GI Bill, and Reserve Education Assistance Program states "the sponsor may transfer, modify, or revoke entitlements at any time" for the Montgomery GI Bill while the chart clearly states the Post 9/11 GI Bill must be transferred while on active duty.  He states he now wants to transfer these entitlements but his spouse and children can only be added by the Department of the Army (DA).  This appears to be an organizational process issue which the DA can resolve for him.
   
3.  The applicant provides his retirement orders (Orders 20-0002), his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a printout from the VA benefit comparison chart.

CONSIDERATION OF EVIDENCE:

1.  Orders 20-0002, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Stewart/Hunter Army Airfield Army Personnel Processing Center, dated 20 January 2010, retired the applicant from active duty effective 30 June 2010 with more than 28 years of creditable active service.  He was placed on the retired list on 1 July 2010.

2.  His DD Form 214 shows he retired from the Army by reason of sufficient service for retirement on 30 June 2010 in the rank of lieutenant colonel.

3.  During the processing of this case an advisory opinion was obtained from the Army, Office of the Deputy Chief of Staff (ODCS), G-1.  The advisory official stated Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, 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.  The Montgomery GI Bill is not transferable to dependents.  In order for Soldiers to transfer education benefits to dependents, the Soldier must convert to the Post 9/11 GI Bill.  The advisory official indicated that based on the details provided below the ODCS, 
G-1 did not recommend administrative relief for the applicant unless he can provide evidence showing he attempted to transfer prior to leaving military service and/or he was given false information by a specific, reliable source about the rules of transferring education benefits.

	a.  The Army offered the transfer of Montgomery GI Bill benefits for a brief period of time, but it was only available to Soldiers who agreed to forgo a portion of their bonus for the purpose of transferring benefits.  The applicant never met this requirement.  The Army no longer offers any Soldiers the ability to transfer the Montgomery GI Bill.

	b.  The Benefit Comparison Chart, which the applicant referred to in his application, is posted on the VA website.  G-1 included the chart, stating it clearly demonstrates the ability to transfer Post 9/11 GI Bill benefits, but states the transfer of Montgomery GI Bill benefits is extremely limited (addressed in paragraph a, above).
	c.  A Soldier must initially request to transfer Post 9/11 GI Bill benefits on the DOD's Transfer of Education Benefits (TEB) online database.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective dependent must then submit an application for VA education benefits (VA-Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits.  The applicant did not complete the required steps to transfer benefits prior to leaving military service.

4.  The advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  He states in his response to the advisory opinion that he did not try to transfer his benefits prior to his retirement.  However, he did receive confusing and misleading information from VA's GI Bill web page.  Because of this information he decided to maintain Montgomery GI Bill benefits with the intent to transfer them to his dependents after retirement.

   a.  He states the Board staff should use the document "VA Benefit Comparison Chart (http://www.gibill.va.gov)" he provided and compare it with the information currently posted at this URL which has been modified.  Specifically, he asks for review of page 5 and reference to the row marked transferability and the third column identifying Montgomery GI Bill Active Duty.  Please note that it says:

* Members with at least 6 years of service who reenlist for at least 4 more years can transfer up to 36 months of benefits to their dependents
* Sponsor may transfer, modify, or revoke entitlement at any time
* Spouse may use transferred benefits immediately, child may use transferred benefits immediately, child may use transferred benefits after sponsor has completed 10 years of service

Based on this information and the fact he completed 29 years of active service (vice the 10 required) he believed he was eligible to transfer his Montgomery GI Bill benefits as a sponsor to his dependents at any time.

	b.  He states the benefit comparison chart he used to make his retirement decisions did not include the words describing the Montgomery GI Bill transferability as restrictive.  He states that had he seen the benefits comparison chart today posted on the GI Bill website prior to his retirement in June 2010 he would have opted for the Post 9/11 Montgomery GI Bill and transferred the benefits to his six dependents of record.  He therefore requests the authority to 



make this transfer today based on the reasonable interpretation that 29 years of active service qualified him to transfer Montgomery GI Bill benefits to his dependents.  He further states his dependents have not made any previous claims to VA and if he is granted relief that the beginning date for use of his transferred benefits would be the date granted relief.

5.  A member of the Board staff contacted the office of the advisory opinion to clarify the eligibility or lack thereof of the applicant to transfer Montgomery GI Bill benefits to his eligible benefits.  The official stated for a short period of time (no longer) enlisted Soldiers in specified military occupational specialties were able to forego $3,200 of a reenlistment bonus to accrue eligibility for transferring Montgomery GI Bill benefits to their eligible dependents.  He stated he did not have the reference for this policy, but that the retention force previously used a guide which described this option, though it is no longer a part of the guide.

6.  On 22 June 2009, 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.

7.  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.

8.  Public Law 110-252, section 3319 provides that service members with an approved retirement date after 1 August 2009 and before 1 July 2010 had no additional service requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant may have been told as a general statement prior to retirement that transference of the Montgomery GI Bill benefits to a Soldier's spouse and children could be accomplished at any time.  The Army offered the transfer of Montgomery GI Bill benefits for a brief period of time, but it was only available to enlisted Soldiers who agreed to forgo a portion of their bonus for the purpose of transferring benefits.  However, there is no evidence he was ever eligible to transfer his Montgomery GI Bill benefits.  In addition, the Army no longer offers any Soldiers the option to transfer the Montgomery GI Bill.

2.  DOD established the criteria for the TEB provision of Post 9/11 GI Bill on 22 June 2009.  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.  It appears the applicant was eligible to convert his Montgomery GI Bill benefits to the Post 9/11 GI Bill while he was still on active duty.  However, he elected not to opt for the Post 9/11 GI Bill and expected to transfer his Montgomery GI Bill entitlements now.

3.  The applicant would have been eligible to transfer any Post-9/11 GI Bill benefit to either his spouse or children, if he had converted his Montgomery GI Bill benefits to the Post 9/11 GI Bill while he was still on active duty and then transferred it to his dependents before he left the service.  There is no evidence he attempted to do any of the above.  As such, there is an insufficient basis for granting his request.

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 that 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)                                         AR20110014187



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ABCMR Record of Proceedings (cont)                                         AR20110014187



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