IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110015713 


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 an exception to policy to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to her dependents.

2.  The applicant states, in effect, she was provided erroneous information by the Department of Veterans Affairs (VA) concerning the process of transferring her education benefits prior to retirement.  She was told that she could not transfer her education benefits unless they were going to be used within 2 years from the date of the transfer.  She found out recently that this was incorrect.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), her social security card, and an identification card.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant executed an oath of office on 9 August 2001 and she was appointed as Reserve Military Intelligence (MI) warrant officer.  She entered active duty on the same date.  She served in staff and leadership positions and attained the rank of chief warrant officer three (CW3). 

2.  She underwent a pre-separation briefing, on 6 October 2008, wherein she checked the "Yes" block in item 13a (Education/Training - Education Benefits (Montgomery GI Bill (MGIB)) of her DD Form 2648 in anticipation of her upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  On 31 August 2009, she was honorably retired and placed on the Retired List in her retired rank of CW3 on 1 September 2009.  She completed 21 years of creditable active service.

4.  In the processing of this case an advisory opinion, dated 17 October 2011, was received from the Office of the Deputy Chief of Staff, G-1.  An advisory official recommended approval of the applicant's request because the applicant left the military within 90 days of implementation of the program.  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 August 2009.  The applicant retired on 31 August 2009.  She would have been eligible to transfer the benefits before she retired.  

	b.  Have 6 years of eligible service to transfer the benefits to a spouse and 
10 years to transfer the benefits to children.  The applicant had over 20 years of service so she was eligible to transfer the benefit if she had transferred it before she left the service.

	c.  Have eligible dependents enrolled in DEERS (Defense Eligibility Enrollment Reporting System).  Children lose an eligible dependent status upon turning 21 years of age, or at marriage.  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.  The applicant had three eligible dependents (spouse and two children) enrolled in DEERS. 

	d.  Initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The applicant did not complete the requirements in the TEB online database because she claims she was not aware of the requirement to transfer prior to leaving the service.

5.  The official at the Office of the Deputy Chief of Staff, G-1 states that individuals should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they left the service during the implementation phase (first 90 days of the program).  The applicant's last active 


duty date was 31 August 2009 which was within 90 days after the program's implementation.  

6.  The Office at the Deputy Chief of Staff, G-1 also states that changes to the number of months allocated to dependents can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation.  If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

7.  The applicant was provided a copy of this advisory opinion and she did not respond.

8.  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.

9.  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.

10.  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 applicant was fully eligible to transfer her education benefits under the TEB prior to retirement but did not do so.  The program was implemented in July 2009.  She retired on 31 August 2009.  Prior to retirement, she did not apply for the transfer of benefits while on active duty.

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 she been aware of the procedure to transfer her benefits while in an active duty status she would have done so.  Therefore, as a matter of equity, her records should be corrected to show she did so in a timely manner prior to her 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 her application and the Army approved her request to transfer her Post 9/11 GI Bill benefits to her 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)                                         AR20110015713



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ABCMR Record of Proceedings (cont)                                         AR20110015713



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