IN THE CASE OF:
BOARD DATE: 22 February 2012
DOCKET NUMBER: AR20110016289
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 record to show he transferred his Post 9/11 Education Benefits to his children.
2. He states he retired on 30 September 2009 after 28 years of service. He qualifies for the Post 9/11 GI Bill; however, at the time of his retirement he was unaware of the option available to transfer benefits to his children. Therefore, he did not execute a transfer of education benefits (TEB). He did not have an opportunity to learn about the option because the policy was established within 90 days of his retirement and he had little contact with the Army during that period.
3. He provides:
* 10 DA Forms 31 (Request and Authority for Leave)
* a DD Form 2656 (Data for Payment of Retired Personnel)
* a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* a letter from the Office of the Deputy Chief of Staff, G-1, to his Senator, dated 7 July 2011
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his retirement orders
CONSIDERATION OF EVIDENCE:
1. On 30 September 2009, the applicant retired after completing 28 years,
4 months and 4 days of creditable active service.
2. During the processing of this case, on 17 October 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who recommended approval of the applicant's request. He states, in part:
* The applicant's last day in service was 30 September 2009 and he was eligible to transfer his Post 9/11 GI Bill benefits before he retired
* Based on his more than 20 years of service, he was eligible to transfer his benefits to his spouse or children prior to his retirement
* He did not complete the requirements in the TEB online database because he claims he was not aware of the requirement for transfer prior to leaving service
* Had he transferred his benefits prior to leaving military service, he would not have incurred an additional service requirement because he had more than 20 years of service
* A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless the Soldier left the service during the implementation phase (first 90 days) of the program
* The applicant's last day in the service was within 90 days of the program's implementation
* He took none of the steps required to transfer benefits
3. On 18 October 2011, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
4. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states 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 for 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.)
5. The policy further states the Secretaries of the Military Departments will provide counseling on the benefits under the Post 9/11 GI Bill to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant retired on 30 September 2009, within 90 days of the implementation of the program authorizing transfer of Post 9/11 GI Bill benefits. The record also confirms he had little contact with the Army during the period following program implementation on 1 August 2009.
2. In view of the available evidence and the advisory opinion, it would be appropriate to correct his record to show he submitted a timely request to transfer his Post 9/11 GI Bill benefits to his children prior to his retirement.
3. He has not provided information on how he wishes to divide his available benefits among his children. The office tasked with correcting his record should contact him to determine how he wishes to divide his benefits.
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 his application and the Army approved his request to transfer Post 9/11 GI Bill benefits to his dependents 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) AR20110016289
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ABCMR Record of Proceedings (cont) AR20110016289
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