IN THE CASE OF:	  

		BOARD DATE:	    22 February 2012

		DOCKET NUMBER:  AR20110016561 


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 approval of Transfer of Educational Benefits (TEB) under the Post 9/11 GI Bill to his family members.

2.  He states:

	a.  his retirement date was 1 September 2009 and he requested to have his new Post 9/11 GI Bill transferred to his family members prior to this date at the Education Center and during his separation briefing.

	b.  no one had any idea on how or what was required to be done because the program was not fully implemented at that time.

	c.  he recently followed all procedures to transfer benefits over the internet, but the Department of Defense (DOD) site does not list his family members.

	d.  he was told his family members are not enrolled in the Defense Eligibility Enrollment Reporting System (DEERS), but this was not the case.

	e.  his family was enrolled in DEERS before his retirement and they continue to be enrolled.  He would like them listed on the DoD site so he can transfer his Post 9/11 GI Bill.  He should not be penalized for the lack of knowledge or slow implementation of the new GI Bill.  


3.  He provides:

* Email from the Office of the Secretary of Defense (OSD)
* DoD benefits web site
* Post 9/11 GI Bill web site
* Letter from the Department of Veterans Affairs (DVA)

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years, 4 months, and 27 days of creditable active service, the applicant retired from the Regular Army on 31 August 2009 in the rank/grade of master sergeant (MSG)/E-8.

2.  He also provided a letter, dated 24 August 2010, from the DVA, Atlanta Regional Office, in which he was advised he was entitled to benefits for an approved program of education or training under the Post 9/11 GI Bill.

3.  He provided information from the “myDoDBenefits – Health Care” website.  On page 2 under the Transfer of Education Benefits section, it indicates he could be eligible to transfer education benefits and he was advised to refer to the GI Bill website.  He selected the Post 9/11 GI Bill, chapter 33.  His family members were not listed.  He placed a check in the first block indicating he was eligible for the Post 9/11 GI Bill, the program he was applying to transfer.

4.  In a 10 January 2011 email, OSD explained to him the criteria to qualify to transfer of benefits to a spouse.  Since he was no longer on active duty, this office was not able to provide direct assistance and he was advised to apply to this Board.

5.  During the processing of this case, on 18 October 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch.  The advisory official recommended approval of the applicant’s request.  He stated:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

	b.  the applicant is eligible to transfer benefits under the Post 9/11 GI Bill TEB Program to his family members 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 that left service during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service.

	c.  the applicant’s last day in service was 31 August 2009 and he would have been eligible to transfer the benefit if he transferred before he left service.  He had more than 20 years of service upon his retirement, so he was eligible to transfer to either his spouse or children.

	d.  the TEB online database shows the applicant has three eligible family members (spouse and two children).  The TEB website shows no action was taken by the applicant to transfer any benefits.

6.  On 20 October 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 did not respond.

7.  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 an eligible individual 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for approval of TEB under the Post 9/11 GI Bill to his family members has been carefully considered and 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, many Soldiers who left service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving service.

3.  The evidence of record shows the applicant retired from active duty on 31 August 2009, which is within 90 days of the implementation of the program.

4.  Therefore, it would be equitable to correct his record to reflect he applied to transfer his education benefits under the Post 9/11 GI Bill TEB Program upon implementation of the program.

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 he filed his application and the Army approved his request to transfer Post 9/11 GI Bill benefits to his family members 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)                                         AR20110016561



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ABCMR Record of Proceedings (cont)                                         AR20110016561



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