IN THE CASE OF:	  

		BOARD DATE:  15 March 2012

		DOCKET NUMBER:  AR20110016076 


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 request for Transfer of Educational Benefits (TEB) under the Post-9/11GI Bill to his dependents.

2.  The applicant states:

* he was not made fully aware of the process and procedures for transferring educational benefits despite personal efforts to gain information
* he missed the designated suspense by 1 day
* he made use of every available resource to obtain accurate information
* the guidelines to transfer educational benefits before retirement was not clearly communicated to him through the Army Career Assistance Program at Fort Lee, Virginia
* he was told by the educational counselor that the guidance from the Department of Veterans Affairs (VA) was not complete/unclear
* he was told to wait until clear guidance was received via the VA
* he was told that as long as he was on active duty as of 1 August 2009, he could transfer benefits at any time before or after leave the military
* he submitted his request to transfer his benefits on 1 September 2009
* he has 26 months of educational benefits and since the VA is committed to paying him, there is no loss or gain to the VA or the government in granting him the opportunity to transfer benefits to his dependents
* he strongly believes that a late submission of 1 day should not outweigh 21 years of dedicated and committed service


3.  The applicant provides:

* email from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, dated 28 July 2011
* letter to a U.S. Senator, dated 28 July 2011
* self-authored letter to the Army Review Boards Agency, dated 3 August 2011
* self-authored letter to a Representative in Congress, undated
* self-authored letter to a U.S. Senator, undated

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100019161 on 12 April 2011.

2.  During the processing of the applicant's previous request for TEB under the Post-9/11GI Bill to his dependents, the Deputy Chief of Staff, G-1, recommended disapproval of his request.  The Deputy Chief of Staff, G-1, stated the applicant was not eligible to transfer his benefits because he was required to be on active duty or a member of the Selected Reserve and that the Army does not allow those who retired or separated from the Army to transfer Post-9/11 GI Bill benefits.  His previous request was denied by the ABCMR on 12 April 2011.

3.  The applicant honorably retired on 31 August 2009 in the rank of lieutenant colonel with 21 years, 8 months, and 1 day of active service.

4.  During the processing of this case, an advisory opinion was obtained from Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, who recommended granting administrative relief based on the following facts because the applicant left the service within 90 days of implementation of the program.

	a.  He was honorably retired on 31 August 2009 which was within 90 days after implementation of the Post-9/11 GI Bill.  He had more than 20 years of service prior to retirement; therefore, he would not have incurred an additional obligation.

	b.  The TEB on-line database shows he had four eligible dependents:  his spouse and three children enrolled in the Defense Enrollment Eligibility Reporting System [DEERS].  As a result, he was eligible to transfer his benefits to his spouse or his children if he completed the request before leaving the military.

	c.  The TEB website shows no action was taken by the applicant to transfer any benefits.  The applicant states he did not complete the requirements in the TEB on-line database because he was not aware of the requirement to transfer his benefits prior to leaving the military.

5.  The advisory opinion further stated that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements to transfer their benefits prior to leaving the military.

6.  On 1 November 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He concurred with the advisory opinion on 4 November 2011.

7.  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 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

8.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute 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.  The general eligibility criteria are as follows:

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

	b.  Service members also 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, or 12304 (orders in support of contingency operations, i.e., mobilization) and must have received an honorable discharge at the conclusion of active service.

9.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, the service member is entitled to transfer benefits to his 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 as follows:

* service members eligible for retirement on 1 August 2009 – no additional service is required
* service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required
* service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required
* service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required
* service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required
* active duty service members who separate, retire, transfer to the Reserve, or are discharged on or prior to 1 August 2009 – are not eligible to elect transferability

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he applied for and was approved to transfer his Post-9/11 GI Bill benefits to his eligible dependent children prior to retirement on 31 August 2009 based on a lack of available information has been carefully considered and found to have merit.

2.  The available evidence shows he was fully eligible for transfer of his educational benefits to his dependents under the Post-9/11 GI Bill, but he contends he was not aware he needed to be on active duty to transfer the benefits to his dependents.

3.  The advisory opinion recommends administrative relief because he left the service within 90 days of the implementation of the program.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements to transfer benefits prior to leaving the military.  The applicant retired on 31 August 2009, which was within 90 days of implementation of the program.

4.  In view of the above and in the interest of equity, his request for relief should be granted.


BOARD VOTE:

___X____  ___X ___  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100019161, dated 12 April 2011.  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 his 
Post-9/11 GI Bill benefits to his dependent prior to his 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)                                         AR20110016076



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ABCMR Record of Proceedings (cont)                                         AR20110016076



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