IN THE CASE OF:	  

		BOARD DATE:  31 January 2012

		DOCKET NUMBER:  AR20110014469 


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 Post-9/11 GI Bill Transferability Program to transfer his education benefits to his dependents before he was released from active duty on 30 September 2009.

2.  The applicant states that the Post 9/11 GI Bill became law on 1 August 2009 and while he was still on active duty on 4 August 2009 he called the Department of Veterans Affairs (VA) educational benefits toll free number to ask how to apply for a transfer and was instructed to complete VA Form 22-1990E.  He further states that he completed the form as directed and on 30 September 2009 was retired after 28 years of service.  On 10 November 2009, he received a VA letter stating that he had to go through the Department of Defense (DoD) to transfer his educational benefits and he as subsequently informed by a Human Resources Command Post 9/11 representative that he had to be on active duty to transfer his benefits.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of orders transferring him to the Retired Reserve, and a copy of his VA Form 22-1990E dated 4 August 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 28 June 1961 and was commissioned as a United States Army Reserve (USAR) Military Intelligence second lieutenant on 29 June 1981.  He continued to serve in the USAR and was promoted to the rank of lieutenant colonel on 1 May 2002.

2.  On 29 November 2004 he was ordered to active duty in support of Operation Iraqi Freedom.  He deployed to Afghanistan from 1 April 2004 – 14 November 2004 and  to Iraq from 27 January 2009 – 2 June 2009.

3.  On 30 September 2009 he was honorably released from active duty due to completion of required service.  He had served 4 years, 10 months, and 2 days of active service during this deployment and he used all of his accrued leave.  On 1 October 2009 he was transferred to the Retired reserve due to completion of maximum years of service.

4.  In the processing of this case a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1 who opined that the applicant’s request should be approved because he left the service within 90 days of implementation of the program and was eligible to transfer his benefits to his children at the time.

5.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he was unaware of the program during his deployment to Iraq.  When he returned, he took some leave and began outprocessing in June 2009 and was briefed at the Fort Belvoir, Virginia education center; however, no information on the Post 9/11 G.I.Bill Transfer Program was discussed.  He then went on terminal leave until his retirement at the end of September 2009.

6.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

7.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute the transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

8.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

   d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

   e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he applied for and the Army approved transferring his education benefits under the Post-9/11 GI Bill to his dependents prior to his release from active duty on 30 September 2009 has been carefully considered and is found to have merit.

2.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  However, the applicant was on terminal leave during the time the program was implemented and it is apparent based on the fact that he contacted officials at the VA on 4 August 2009 that officials were not familiar with the correct procedures to accomplish the transfer.

3.  Therefore, it appears reasonable to presume given the close proximity of the applicant's REFRAD (30 September 2009) to the effective date of the Post-9/11 GI Bill (1 August 2009), and given the fact he was outprocessing and going on terminal leave, that he was not informed that he had to make his transfer of education benefits while he was still on active duty.  

4.  It is also reasonable to presume given the timing of the implementation of the program and the applicant's retirement, that he very well could have fallen through the cracks and was not notified – and it is not reasonable that he would not have enrolled while he was on active duty if he had known given that he had two children eligible for the benefit.

5.  Therefore, given the circumstances in this case, it would serve the interest of equity to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill transferability provision upon implementation of the provision.

BOARD VOTE:

___X____  ___X ___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 education benefits to his dependents prior to his REFRAD, provided all other eligibility criteria are met.



2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20110014469





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014469



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1