IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110017729 


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 an exception to policy to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependent.  

2.  The applicant states he was not informed or counseled regarding the need to accomplish the transfer while on active duty.  He outprocessed and signed out of Fort Bliss, TX, at the end of July 2009 and the program was started on 1 August 2009.  He retired on 30 September 2009. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Certificate of Eligibility
* DA Form 31 (Request and Authority for Leave)
* Army Continuing Education System Record Continuation Sheet
* Retirement orders
* Articles regarding the Post 9/11 MGIB transfer

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant was appointed as a Reserve warrant officer with concurrent call to active duty and executed an oath of office on 15 November 1990.  He served in a variety of stateside and/or overseas assignments and he attained the rank of chief warrant officer four (CW4).

2.  He underwent a pre-separation briefing on 25 August 2008 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  He signed out of his unit on transition leave on 10 August 2009.  His leave was approved through 30 September 2009, his date of retirement. 

4.  On 30 September 2009, he was honorably retired and placed on the Retired List in his retired rank of CW4 on 1 October 2009.  He was credited with over 
20 years of creditable active service.

5.  On 28 October 2011, an advisory opinion was obtained in the processing of this case.  An official in the Office of the Deputy Chief of Staff, G-1, recommends approval of the applicant's request because he left the military within 90 days of implementation of the program.  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 September 2009.  The applicant retired on 30 September 2009.  He would have been eligible to transfer the benefits before he retired.  

	b.  Have 6 years of eligible service to transfer the benefit to a spouse and 
10 years to transfer the benefit to children.  The applicant had over 20 years of service.

	c.  Have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  The applicant had two eligible dependents (spouse and daughter) enrolled in DEERS but he did not complete the requirements because he states he was unaware of the requirements.

	d.  Agree to complete any additional service obligation.  The applicant in this case did not incur any additional service obligation.

	e.  Initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  The respective dependent must then submit an application for VA benefits.  Since the applicant states he was unaware of the program process, none of these steps were taken. 


6.  The official at the Office of the Deputy Chief of Staff, G-1 states that individuals should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they left the service during the implementation phase (first 90 days of the program).  The applicant's last active duty date was 30 September 2009 which was within 90 days after the program's implementation.  

7.  The Office at the Deputy Chief of Staff, G-1 also states that changes to the number of months allocated to dependents can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation.  If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

8.  The applicant was provided a copy of this advisory opinion and he did not respond.

9.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member 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 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.

10.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

11.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but did not do so.  The program was implemented in July 2009.  He retired on 30 September 2009.  Prior to retirement, he did not apply for the transfer of benefits while on active duty.

2.  The DOD, VA, and the Army conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent:  

* be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action)
* have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of the request, unless retirement eligible

3.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the programs implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.  

4.  The applicant's retirement date was 30 September 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.  

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)                                         AR20110017729



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ABCMR Record of Proceedings (cont)                                         AR20110017729



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