BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110014210 


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 his eligible family members were listed in the official Transfer of Education Benefits (TEB) online database and to transfer his GI Bill educational benefits to his eligible family members under the Post 9/11 GI Bill transferability option.

2.  The applicant states he was on active duty in the U.S. Army on and after
1 August 2009 and he met the criteria for the Post 9/11 GI Bill transferability option.  His family members were enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and eligible for the TEB.

   a.  In July 2009, while out-processing for retirement, he was advised of how to convert his Montgomery GI Bill to the Post 9/11 GI Bill and he did so.  However, he was not informed that if he elected to transfer his benefits to his dependents, it would have to be done prior to his retirement date.

   b.  The Post 9/11 GI Bill was implemented on 1 August 2009.  He went on permissive temporary duty (PTDY) and transition leave during the period
10 September 2009 through 31 January 2010.  He retired from active duty on
31 January 2010.

3.  The applicant provides the following documents in support of his request:

* DD Form 2656 (Data for Payment of Retired Personnel
* Special Leave Accrual memorandum, dated 22 February 2010
* two DA Forms 31 (Request and Authority for Leave)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) letter, dated 16 May 2011
* Email messages, dated 20-21 June 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable active duty enlisted service in the Regular Army from 2 December 1988 through 27 January 1993.

2.  He was appointed as a Reserve commissioned officer in the U.S. Army and entered active duty on 28 January 1993.  He was promoted to lieutenant colonel/pay grade O-5 on 1 December 2009.

3.  A DD Form 214 shows the applicant was honorably retired from active duty on 31 January 2010.  He completed 17 years and 3 days of net active service this period and 4 years, 1 month, and 26 days of total prior active service.

4.  In support of his application the applicant provides the following documents:.

	a.  Data for Payment of Retired Personnel, dated 29 June 2009, that shows the applicant listed Lisa M. H---- (spouse), Laken M. H---- (daughter), and Bradley T. W----- (stepson) as his dependents.

	b. 1st Brigade Combat Team, Fort Campbell, Kentucky, memorandum, dated 22 February 2010, subject:  Special Leave Accrual, that shows the applicant's request for 25 days of leave lost due to deployment in support of Operation Iraqi Freedom was approved for carry-over to fiscal year 2010.

	c.  Two DA Forms 31 that authorized the applicant PTDY and transition leave beginning 10 September 2009 through 31 January 2010.

	d.  VA letter, dated 16 May 2011, to the applicant's daughter that denied her claim for the transfer of entitlement to educational benefits because her father had not been approved to transfer entitlement and/or she was not designated on the approval from the Department of Defense.

	e.  An email message from the applicant to the Army G-1, subject:  Post 9/11 GI Bill, dated 20 June 2011, in which he requested assistance in transferring his educational benefits.  On 21 June 2011, he was advised to apply to the Army Board for Correction of Military Records.

5.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch, Washington, DC.

	a.  The advisory official recommends administrative relief for the applicant.

   b.  The advisory official notes the applicant was eligible to transfer benefits under the Post 9/11 GI Bill transferability program. 
   
    	(1)  He was on active duty on 1 August 2009 and his last day of active duty service was 31 January 2010.
   
    	(2)  He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children.
   
    	(3)  He was eligible to transfer his educational benefits to the following family members who were enrolled in DEERS:  Lisa M. H---- (spouse), Bradley T. W----- (stepchild), and Laken M. H---- (child), all of whom were enrolled in DEERS.

	 	(4)  He was eligible to transfer educational benefits to them, if he completed the request before leaving military service; however, he did not.

	c.  The advisory official notes the Department of the Army, Department of Defense, and Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post 9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of
1 August 2009.
   
    	(1)  The applicant began an extended period of absence prior to his retirement on 10 September 2009 and claims he was not aware of the requirement to transfer prior to leaving service.

    	(2)  The advisory official adds that, although significant measures were taken to disseminate information, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.

6.  On 7 October 2011, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.
7.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended
Title 10 (Armed Forces), U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time 
of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the armed forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

   b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement as follows:
   
		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.

	c.  To satisfy this legally imposed constraint, a child must be an eligible family member at the time of transfer.  To be considered an eligible family member, a child must be enrolled in DEERS and eligible for DEERS benefits.

		(1)  Children lose eligible family member status upon turning age 21, or at marriage.

		(2)  Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried, as verified by DEERS.

		(3)  Family member children can use transferred benefits up to the age
of 26.

	d.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

8.  Army Regulation 600-8-14 (Identification [ID] Cards for Members of the Uniformed Service, Their Eligible Family Members, and Other Eligible Personnel) provides instruction to prepare, issue, use, account for, and dispose of ID cards the Uniformed Services issue.  Chapter 4 (ID Cards for Children), Table 4-4 (Eligibility Criteria and Documentation Requirements for Students Age 21 to 23), shows an eligible child enrolled full-time in an accredited institution of higher learning, and who is dependent on the sponsor for over 50 percent of their support, remains eligible as a family member of the sponsor until age 23 or graduation, whichever occurs first.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the Post 9/11 GI Bill Transferability Program prior to his retirement.

2.  He was eligible to transfer his educational benefits to the following family members who were enrolled in DEERS:  Lisa M. H---- (spouse), Bradley T. W----- (stepchild), and Laken M. H---- (child), all of whom were enrolled in DEERS.

3.  The advisory opinion points out many Soldiers that left the service during the first 90 days of the program were not fully aware of the requirement to transfer Post 9/11 benefits prior to leaving military service.

4.  The applicant began an extended period of absence on 10 September 2009, which was within 90 days after the program's implementation, and he retired from active duty on 31 January 2010.  Thus, he may not have been aware of the requirement to transfer his benefits prior to leaving military service.  

5.  Therefore, it would be appropriate to correct his military records to show he elected to transfer benefits under the Post 9/11 GI Bill Transferability Program to his eligible dependents prior to his retirement date.


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 correcting his military records to show he elected to transfer benefits under the Post 9/11 GI Bill Transferability Program to his eligible dependents prior to his retirement date.




      _______ _   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)                                         AR20110014210



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ABCMR Record of Proceedings (cont)                                         AR20110014210



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