IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110014236 


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 reconsideration of his earlier request to transfer his Post-9/11 GI Bill Education Benefits (TEB) to his dependents as an exception to policy.

2.  He states that one of the reasons the Board denied his original request was due to the fact he had not provided any evidence to show that prior to his requirement he had in fact attempted to transfer his educational benefits to his dependents.  He recently contacted the person at the West Point Education Center that out-processed him.

3.  He provides:

* his previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 3 February 2011
* a memorandum from the West Point Education Officer, dated 24 June 2011
* a memorandum from a Senior Veterans Counselor from the State of New York, Division of Veterans' Affairs, dated 29 June 2011

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100014192 on 3 February 2011.

2.  He provides two memoranda as new evidence which were not previously considered by the ABCMR.  As such, the new evidence warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 31 January 1984.  He was appointed a commissioned officer in the U.S. Army Reserve (USAR) on 3 June 1998 and entered active duty that date.  On 30 September 2009, he was honorably retired and placed on the Retired List in his retired rank of major.  He was credited with 25 years and 8 months of active service.

4.  In a memorandum, dated 24 June 2011, the Installation Management Command, West Point Education Officer, stated the applicant out-processed from their center in June 2009.  The applicant wanted to transfer his Post 9/11 Education Benefits to his daughter.  At the time of his out-processing they did not know the mechanism used to transfer benefits to dependents.  The applicant out-processed without a briefing from the Education Counselor that covered how to transfer his benefits.

5.  In a memorandum, dated 29 June 2011, the State of New York, Division of Veterans' Affairs, Senior Veterans Counselor, stated the applicant did not sign the required documents to transfer education benefits to his daughter because at the time neither he nor the applicant were aware of the requirements for transferring those benefits.  The applicant reported to his office on 3 June 2009 to inquire about available Department of Veterans Affairs (VA) benefits and to file a compensation claim.  While there, he and the applicant did discuss the rumors of the Post 9/11 GI Bill and the possibility of transferring his benefits.  There were no official guidelines in place, including required documents or signatures, for conducting that transfer until August 2009.  The applicant started transition leave on 1 July 2009, prior to the release of those guidelines.

6.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member 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 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.  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.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant started transition leave on 1 July 2009, prior to the release of guidelines for transfer of his education benefits under the TEB.  He was fully eligible for transfer his education benefits prior to retirement but did not do so.  The program was implemented on 1 August 2009.  The applicant retired on 30 September 2009.

2.  In previous cases, the Office of the Deputy Chief Staff, G-1, has opined that although significant measures were taken to disseminate the transferability of unused Post 9/11 GI Bill benefits many Soldier that left the service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving military service.  The applicant provided supporting evidence that his education center officer was unaware of the requirements and/or the procedures to apply for such benefit at the time of his out-processing.  

3.  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 amendment of the ABCMR’s decision in Docket Number AR20100014193, dated 3 February 2011.  As a result, the Board recommends that the 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 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)                                         AR20110014236



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ABCMR Record of Proceedings (cont)                                         AR20110014236



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