IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110018317 


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, in effect, correction of his record to show he made a timely election to transfer his Post-9/11 GI Bill education benefits to his child. 

2.  He states he received incorrect counseling at Brooke Army Medical Center (BAMC), Fort Sam Houston, TX regarding his ability to transfer Post-9/11 education benefits to his family members from Army personnel during his final out-processing.  He was on active duty and eligible to transfer his benefits for 7 months after the program was initiated in August 2009.  The incorrect counseling he received caused him to miss the opportunity to transfer his benefits, and his record should be corrected to allow the transfer now.

3.  He provides a 12-page self-authored statement, 11 statements identified in a list of alphabetically tabbed documents, and 11 documents identified in a list of numerically tabbed documents.

CONSIDERATION OF EVIDENCE:

1.  Orders 286-0111, issued by Headquarters, U.S. Army Garrison, Fort Sam Houston, dated 13 October 2009, retired the applicant from active duty effective 28 February 2010 and placed him on the Retired List.

2.  On 28 February 2010, he retired in the rank/grade of lieutenant colonel (LTC)/O-5 after completing 27 years and 13 days of total active service.

3.  In his self-authored statement, he summarizes the circumstances of his retirement processing and counseling on transfer of education benefits (TEB).

	a.  He was selected for reassignment in August 2009, but elected to apply for retirement in lieu of a permanent change of station.  His retirement processing was conducted on a compressed timeline.  He applied for retirement on 29 September 2009, and he was on transition leave 37 days later.  The expedited retirement process resulted in many of the normal required steps being condensed, reduced, or eliminated altogether.  The process resulted in him receiving erroneous counseling regarding TEB.

	b.  During his final months at BAMC, he was present on several occasions when TEB was discussed, both formally and informally.  In September 2009, he was present at a staff meeting when the topic came up.  This was a little over a month after the program was initiated and there were many questions.  The personnel noncommissioned officers (NCOs) present at the meeting did not have answers to the questions and disagreed among themselves as to who was eligible for TEB, who could transfer the benefit, and the application process.

	c.  Because he had heard several interpretations of the intent and process for TEB, he specifically asked during his out-processing briefing and he was told that retirees could transfer the benefit.  He was told he could not transfer the benefit until he was officially retired.  Based on this information, he left BAMC with the understanding and instructions from BAMC personnel that he was to wait until after his retirement date to apply for TEB.

	d.  It was always his intent to transfer his education benefits to his family members as he has a terminal degree.

	e.  Three months after his retirement, he applied for and he was approved for Post-9/11 GI Bill education benefits.  In February 2011, he attempted to transfer his benefits and was unable to do so.  He contacted a Pentagon customer service desk representative and he was told for the first time that retired members were not eligible to transfer benefits.

	f.  He was directed to call a Department of Veterans Affairs (VA) help line.  From there, he was referred to a career counselor at his last unit to start the appeals process.  He submitted a request for an exception to policy (ETP) to the Fort Sam Houston Education Services Officer (ESO).  This was his first contact with the Fort Sam Houston Education Services Office.  In response, the ESO indicated he was not coded as a retired member in their system.  Until the ESO received his request for an ETP, he was still listed as being on active duty.  The 


ESO indicated the problem may have been discovered had his out-processing been properly accomplished.  He states this is proof that he out-processed quickly and that vital steps were omitted.  The ESO advised him to submit a Congressional inquiry or to contact a Colonel (COL) Y.

	g.  He contacted COL Y and sent a memorandum to the Deputy Commanding General (DCG), Headquarters, Installation Management Command (IMCOM).  His memorandum was forwarded to the Chief, Education Incentives Branch, Army Human Resources Command (HRC), who advised him to apply to this Board.

	h.  He also contacted an Army Inspector General (IG) office and a VA office in Arkansas.  The IG office concluded that applying to this Board was the only way to "reverse the decision."  The VA office indicated misinformation from service personnel had caused veterans to lose education benefits.

	i.  He states there are seven main points in his appeal:

		(1)  He received erroneous counseling during out-processing.

		(2)  Short-notice retirement actions led to oversight and elimination of several required retirement actions and information.

		(3)  Misinformation regarding the entitlement was briefed in a hospital staff meeting and disseminated throughout hospital communication channels, both formal and informal.

		(4)  No information was reported or disseminated through official channels.

		(5)  Office of the Under Secretary of Defense Directive-Type Memorandum 09-003, dated 22 June 2009, granted exceptions for active duty members who served 20 years and had effective retirement dates from August 2009 to July 2010.

		(6)  He was eligible for TEB from August 2009 to 28 February 2010 as he was on active duty and met all other criteria.

		(7)  He did not research the details of TEB himself because he trusted the sources that told him to wait until after retirement and his attention was focused on health issues and his duties


4.  He provides 11 statements and memoranda:  

	a.  COL T, Chief, Military Human Resources Division, Headquarters, U.S. Army Medical Command, Fort Sam Houston states she was the Human Resource Manager for the Army Medical Department Center and School, Fort Sam Houston from July 2007 to May 2009.  She also states, in part:

* BAMC was not alone in experiencing the slow flow of information regarding the Post-9/11 GI Bill
* at her location, they were inundated with questions that they were not able to answer, but provided information available at the time
* they made every effort to disseminate only factual information, but "rumors and unofficial communication channels, along with individual interpretations of the process influenced the content"
* she has known the applicant for 4 years and "found him to be a person of extremely high moral character and values"
* if the applicant says a personnel specialist advised him not to apply for TEB until he retired, she believes this is what happened
* she believes he was provided incorrect information regarding TEB

	b.  Dr. H states she worked at BAMC from June 2008 to December 2009 as a program manager for a contractor in medical logistics.  She states she was in a staff meeting at BAMC in September 2009 when the Post-9/11 GI Bill came up.  The applicant was in attendance.  An administrator from the hospital personnel office indicated active duty personnel could not apply for TEB and she believed this included retired members.  Others thought the benefit was specifically for active duty members only.  The COL in charge of the meeting asked the administrator to research the details and obtain a copy of the actual instruction.  It was not until late December 2009 that she heard the information [provided in the meeting] was incorrect.  

	c.  Major (MAJ) H states he was assigned to the Department of Ministry and Pastoral Care (DMPC) at BAMC from 16 June 2008 to 3 January 2011.  He was assigned to BAMC when the applicant announced his plan to retire in late October 2009.  They were surprised to find out he planned to complete all of the required actions in less than 60 days, but he did.  He attests to the fact that the applicant was occupied with the details of turning over his responsibility and managing the many details related to the department's mission.  He was serving Soldiers and handling administrative tasks until he walked out of the hospital to transport his family to their new location.  The applicant was so busy with the details that MAJ H voluntarily cleaned out and packed his office for him.  MAJ H 


states he did not learn about TEB through BAMC channels.  The information was not widely disseminated.

	d.  Retired MAJ B states he was present during the September 2009 meeting with BAMC personnel.  When TEB came up, it was apparent there was confusion regarding who could transfer educational benefits.  Both unit and command personnel specialists disagreed about the details.  One side thought only active duty personnel could transfer; the other side thought only retired or non-Active Guard Reserve Soldiers could transfer.

	e.  Captain (CPT) C, commander of a unit at BAMC, states the applicant was provided erroneous information regarding TEB prior to his retirement.  The policies for TEB for those at or near retirement were not clearly distributed throughout the command, which resulted in confusion.  He stated the applicant is above reproach, and he takes him at his word that he was unaware or misinformed of the policies prior to his retirement.

	f.  Ms. R, a former CPT, states she was also present at the September 2009 meeting when BAMC staff openly disagreed regarding the Post-9/11 GI Bill and the timeframe for TEB.  She states it was clear the new benefit was causing confusion in the personnel departments responsible for answering questions and that it is no surprise the applicant received erroneous information when he out-processed a month later.

	g.  Ms. W, who identifies herself as a retired senior medical NCO, states she served as an ombudsman for Soldiers in transition and their families.  She was called to assist Soldiers with a wide range of issues including education benefits.  She personally received conflicting information from the VA.  Conflicting answers led her to send Soldiers directly to the VA because it became extremely difficult, if not impossible, to keep up with the different answers.  She provides examples of conflicting and wrong answers given to her by VA personnel.  She states she knows the applicant to be a person of high standards and morals.  She believes he was told to wait until after retirement to file for TEB.

	h.  Ms. M, who states she retired from the Army in January 2007 and served at the Dodd Field Collective Protestant Gospel Service (at Fort Sam Houston) from July 2004 to December 2010, states she was there when the applicant arrived in 2007 and when he retired in November 2009.  She states she was his senior assistant and she had first-hand knowledge of the information he received from BAMC out-processing personnel prior to his retirement.  She asserts the applicant believed he had to wait until after retirement to apply for TEB.  In discussions about the benefit, he stated this was his plan to pay for his 


daughter's college education.  She also asserts she knows that initially there was massive confusion over TEB, not only at BAMC, but in the Army education system as a whole.  She states she has known the applicant for over 19 years, and he is a man of high morals and values.  She believes his account of being misinformed is true.

	i.  Ms. S, who identifies herself as a Department of Defense (DOD) civil service employee at the BAMC obstetrics/gynecology clinic, states she was assigned to this position during the time the applicant out-processed from BAMC.  She recalls the confusion regarding TEB and states she is not surprised the applicant was unable to find accurate information on his eligibility for TEB.  She states she believed he was given erroneous information.  She knows him to be very methodical and process-oriented.  She states "there is no way he would have known to apply prior to retirement and not done it."

	j.  Ms. P states she has first-hand knowledge of the erroneous information provided during out-processing briefings at BAMC in 2009.  She out-processed on 2 October 2009 and was told she was not eligible to apply for the Post-9/11
GI Bill benefits even though she served on active duty the entire period that qualifies one for the benefit.  She states "the [sergeant] who gave us our briefing also said that retirees could transfer the benefit because one retiree asked the question that day."

	k.  Ms. H states she is a hospital volunteer and the spouse of a retired U.S. Air Force senior NCO.  In her position, she has the opportunity to meet and talk with hundreds of people who are assigned to the hospital and around the Fort Sam Houston community each month.  She states she can attest to the fact that the original information being circulated in formal and informal channels about the Post-9/11 GI Bill varied practically every day.  She is not surprised the applicant received some misinformation.  If he says someone misinformed him, she believes they did.  

5.  He provides:

	a.  DA Forms 31 (Request and Authority for Leave) showing he was on leave from 23 to 30 September 2009, permissive temporary duty (TDY) from 14 November 2009 through 3 December 2009, and transition leave from 
4 December 2009 to 28 February 2010;

	b.  a memorandum, subject: Voluntary Retirement in Lieu of Permanent Change of Station, dated 29 September 2009, in which he requested release from active duty and assignment on 28 February 2010 and placement on the Retired List on 1 March 2010, or as soon as practicable thereafter; 
	c.  page 1 of a VA Form 22-1990 (Application for VA Education Benefits), which shows the form was submitted on 27 May 2010;

	d.  a discussion thread from a VA website showing he submitted a question regarding TEB on 24 February 2011 and received a response informing him:

* he had to still be a member of the military to initiate TEB
* if currently retired, he would not be able to initiate TEB
* the DOD website for initiating TEB was www.dmdc.osd.mil/TEB 
* the VA would not take over the process until he had received approval from DOD

	e.  e-mail correspondence showing COL Y referred him to the Army G-1
Post-9/11 GI Bill Team regarding his TEB, and the Army G-1 Post-9/11 GI Bill Team informed him that, by law, he had to be on active duty for TEB; and

	f.  a Consolidated DMPC Monthly Taskings and Event Tracker indicating he continued to perform his assigned duties through 12 November 2009.

6.  He provides a DA Form 137-2 (Installation Clearance Record) showing he cleared installation activities during the period 15 October to 12 November 2009.  The entries for several activities, including the Education Center, bear a date stamp of 15 October 2009, but no signature indicating he visited those offices.  His out-processing was certified as complete on 12 November 2009. 

7.  The instructions included on the DA Form 137-2 state, in part, it is the Soldier's responsibility to complete the checklist properly and that activities marked with an "@" require clearance for all Soldiers separating or retiring from the Active Army.  The Education Center is marked with an "@."

8.  During the processing of this case, on 17 October 2011 an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, who recommended disapproval of the applicant's request.  The advisory official states in part:

* the applicant's last day in service was 28 February 2010 and he was eligible to transfer his Post-9/11 GI Bill benefits before he retired
* based on his more than 31 years of service, he was eligible to transfer his benefits to either his spouse or children prior to his retirement
* he had three eligible family members, his spouse and two children
* 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
* he took none of the steps required to transfer benefits

9.  The advisory official also states 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 Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the
Post-9/11 GI Bill and subsequent TEB.  The applicant's last day in the service was not within 90 days of the program's implementation, and his transition leave did not start within 90 days of the program's implementation.

10.  The advisory official addresses the misinformation the applicant claims he received from a personnel NCO during a staff meeting.  He states personnel NCOs are not the subject matter experts or the approving officials for TEB.  Based on the evidence provided by the applicant, he did not seek guidance from a reliable source until he left military service.  The information he was seeking was available when he separated from sources to include the Education Center, the VA's website, and his service career counselor.

11.  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.  On
21 November 2011, the applicant responded to the advisory opinion.  He states the advisory opinion "lacks the unit-level reality experienced at [BAMC] during my out-processing period and fails to correctly respond to the basic premise of my case, that I was mis-counseled regarding the transfer of this benefit."  He further states, in part:

Here is my basic rebuttal to the advisory:  I have contended all along that I was indeed mis-counseled during out-processing (not only during a staff meeting) regarding the entitlement to transfer the Post 9/11 educational benefit.  This is a fact supported throughout my appeals package through statements from privates to colonels.  The advisory provides no proof to the contrary.  They argue instead that I was mis-counseled by the wrong level (a staff NCO), a point that I will address more specifically later in this response.

Their response focuses on one example (a staff meeting held in September 2009), but ignores several statements made from officers regarding my
mis-counseling specifically and the potential for others to have been
mis-counseled in general based on the sporadic flow of information during the 


initial stages of implementation.  The staff meeting was only another example of how initial misinformed hospital personnel were on this entitlement…it was only one example.

The more pertinent fact was that I was mis-counseled by hospital personnel who should have known the rules regardless of grade/status.  Mis-counseling generally is accepted as legitimate justification for the action I have requested as it is understood that those who provide such counseling are far more knowledgeable about entitlements than those of us who are standing on the other side of the counter receiving that information, regardless of grades.

12.  On 22 June 2009, 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.)

13.  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 available evidence does not support the applicant's request for correction of his record to show he made a timely election to transfer his Post-9/11 GI Bill education benefits
2.  He states that because he had heard several interpretations of the intent and process for TEB, he specifically asked during his out-processing briefing and was told that retirees could transfer the benefit.  He was told he could not transfer the benefit until he was officially retired.  He does not state who told him this was the case during his out-processing briefing.

3.  The DA Form 137-2 he provides indicates he did not visit the Education Center during his out-processing, and he admits that his first contact with this office occurred after he had retired.  The DA Form 137-2 shows he was required to clear this office.  Had he done so, he may well have received accurate information on TEB.  There is no evidence indicating his accelerated out-processing schedule as a result of his voluntary retirement unfairly deprived him of the opportunity to visit the Education Center as he was obligated to do.

4.  The advisory opinion notes the information he was seeking was available when he separated from sources to include the Education Center, the VA's website, and his service career counselor.  Further, he remained on active duty (permissive TDY/transition leave) for over 3 months after he completed out-processing.  Given the situation he describes at BAMC with regard to the accuracy of information on TEB, it would have been in his best interest to seek out a reliable source, such as one of those identified in the advisory opinion, to confirm what he had been told.  His failure to do so is his fault alone.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X  ___  ___X ___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 


are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20110018317



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018317



11


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1