IN THE CASE OF:	  

		BOARD DATE:  23 February 2012

		DOCKET NUMBER:  AR20110016878 


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 records to show he applied to transfer his education benefits to his children under the Post 9/11 GI Bill Transferability Program.

2.  He states:

* he is eligible for the Post 9/11 GI Bill having served on active duty for more than 8 years after September 2001
* he retired on 30 September 2009 after more than 21 years of active duty service
* he is also eligible to transfer his Post 9/11 GI Bill benefits to his family members based on the Post 9/11 GI Bill implementation policy
* he did not receive the necessary information while on active duty in order to make a timely decision about transferring his benefits
* he attended the necessary retirement briefings but was not told about the Post 9/11 GI Bill Transferability Program
* the program was implemented while he was on active duty but after he had attended his mandatory retirement briefings
* he is requesting the opportunity to transfer his benefits to his family members

3.  He submitted:

* his DD Form 214 (Certificate of Release or Discharge from Active Army)


* DA Form 31 (Request and Authority for Leave)
* DD Form 2648 (Preparation Counseling Checklist for Active Component Service Members)
* the Post 9/11 GI Bill Implementation Policy
* a self-authored statement

CONSIDERATION OF EVIDENCE:

1.  The applicant’s official military record shows he retired on 30 September 2009 by reason of sufficient service for retirement.  He completed 21 years, 4 months, and 6 days of creditable active service:
   
2.  He submitted:

   a.  his DA Form 31 that shows he took retirement (transitional) leave from    11 July to 30 September 2009; 
   
   b.  the Post 9/11 GI Bill Implementation Policy that explained that the purpose of this policy was to implement the Post 9/11 GI Bill in order to enhance the Army’s recruiting and retention programs; and

   c.  his DD Form 2648, dated 3 February 2009, that shows in item 13 (Education/Training) he was briefed on the education benefits for the Montgomery GI Bill, Veterans Educational Assistance Program Vietnam, etc. programs.  It does not show he was briefed on the Post 9/11 GI Bill Transferability Program.
   
3.  During the processing of this case, on 25 October 2011, 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 the implementation of the program.  

	a.  He was honorably retired on 30 September 2009 that was within 90 days after the 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 transfer of education benefits (TEB) online database shows he had three eligible family members:  his spouse and two children enrolled in DEERS.  As a result he was eligible to transfer his benefits to this children or his spouse had he completed the required 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 official 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 25 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 that 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 family member prior to retirement on 30 September 2009, based on a lack of information being available, has been carefully considered and found to have merit.

2.  The available evidence shows he was fully eligible for transfer of his education 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 official 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 30 September 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 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 his 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)                                         AR20110016878



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1