IN THE CASE OF:	  

		BOARD DATE:	    22 May 2012

		DOCKET NUMBER:  AR20110016816 


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 the Transfer of Educational Benefits (TEB) to his dependents under the Post-9/11 GI Bill to as indicated:

* S.P.R. (son) - 30 percent (%)
* A.J.R. (son) - 30%
* D.H.R. (son) - 30%
* E.L.H. (spouse) - 10%

2.  He states:

* he received inaccurate, incomplete information from Army personnel regarding the TEB under the Post-9/11 GI Bill during the implementation of the program and prior to his departure from active duty in 2009
* he out-processed at Fort Monroe, Virginia on 26 June 2009 and retired on 31 August 2009; he was fully eligible to participate in the Post-9/11GI Bill program
* information he received from the Military Education Center during his retirement processing did not specify the requirement to transfer Post-9/11 GI Bill education benefits to family members while on active duty 
* although he requested information regarding the TEB under the Post-9/11 GI Bill he never received any information regarding the execution of this benefit verbally, in writing, or email
* the Military Education Center referred him to the Department of Veterans Affairs (VA) website for information based their understanding this was a veteran's benefit administered by the VA
* his transition processing preceded the release of the Army's TEB Post-9/11 GI Bill policy, dated 10 July 2009
* in inquiries he made to the VA between June and August 2009, he was never advised he had to transfer educational benefits prior to leaving the military
* the evidence confirms the inability to transfer educational benefits is not isolated

3.  The applicant provides the indexed list of documents listed on his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is advised that the VA maintains jurisdiction over the distribution of educational benefits.  Therefore, the division of educational benefits among his dependents is not within the purview of this Board.  Accordingly, this portion of his request will not be discussed any further in these proceedings.

2.  The applicant’s official military record shows he was honorably retired, on
31 August 2009, in the rank of colonel/O-6, after completing 26 years, 3 months, and 6 days of active service.

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

   a.  He had more than 20 years of service prior to retirement; therefore, he would not have incurred an additional obligation.

	b.  The TEB online database shows he had four eligible dependants:  his spouse and three children enrolled in the Defense Enrollment Eligibility Reporting System.  As a result he was eligible to transfer his educational benefits to this children or his spouse (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.  However, he claims he did not complete the requirements in the TEB online database because he was not aware of the requirement to transfer his benefits prior to leaving the military.

4.  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.

5.  On 18 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.   

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 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; 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 service.

8.  The program guidance stipulates 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 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:

   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 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 dependents prior to retirement on 31 August 2009 based on a lack of information being available has been carefully considered and found to have merit.  

2.  The available evidence shows the applicant was fully eligible to participate in the TEB under the Post-9/11 GI Bill, but he contends he was not aware he needed to transfer the benefits to his dependents while he was in an active duty status.  

3.  The advisory opinion recommends administrative relief because the applicant left the military within 90 days of 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 military 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 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 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)                                         AR20110016816



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ABCMR Record of Proceedings (cont)                                         AR20110016816



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