IN THE CASE OF: 

		BOARD DATE:	       25 October 2012

		DOCKET NUMBER:  AR20110018785 


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

2.  The applicant states he retired from the Pennsylvania Army National Guard (PAARNG) on 3 February 2010 and he was not informed of the requirement to transfer the benefit while he was still in an active status.  He contacted both the Department of Veterans Affairs (VA) and the PAARNG Incentives Branch and was informed that they could not help him resolve this situation.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that between 15 January 1982 and his retirement from the PAARNG, he had periods of service in the U.S. Army Reserve (USAR), Regular Army, U.S. Marine Corps Reserve, U.S. Marine Corps Regular Service, and the ARNG.  While a member of the ARNG, his most recent period of active duty service was from 19 September 2008 to 5 November 2009, during which he deployed to Iraq for 7 months and 14 days.

2.  After completing over 21 years of service for retired pay, the applicant was honorably discharged from the PAARNG and transferred to the USAR Control Group (Retired Reserve) on 3 February 2010.

3.  There is no indication he applied to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his family members while he was on active duty or as a member of the Selected Reserve on or after 1 August 2009.

4.  During the processing of similar cases advisory opinions were obtained from the Chief, Personnel Policy Division, National Guard Bureau, who recommended disapproval.  The advisory official stated:

	a.  The applicant stated he was not informed of the requirement to transfer his benefits at any time during his service.

	b.  Public Law 110-252, as amended by Public Law 111-377, identify the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.  Public Law 110-252 also establishes the legal requirements on the transferability of unused Post-9/11 GI Bill benefits.  This law limits the transfer of 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.

	c.  The ARNG, Department of Defense, and VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers who left service during the first 90 days of the program (1 August-31 October 2009) were not fully aware of the requirement to transfer prior to leaving military service.

5.  The applicant's last day in service was 3 February 2010, which was not within 90 days after the program’s implementation.  His record is void of any evidence and he did not provide any evidence showing he attempted to transfer his Montgomery GI Bill to Post-9/11 GI Bill while in service to comply with Post-9/11 GI Bill policies by transferring his benefits prior to separation/retirement or within 90 days of the 1 August 2009 implementation date.

6.  On 22 June 2009, the Department of Defense established the criteria for eligibility and transfer of unused educational 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 from 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.

7.  The policy further states the Secretaries of the Military Departments will:

	a.  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

	b.  maintain records for individuals who receive supplemental educational assistance under section 3316 of reference (a) and provide those records to the Defense Manpower Data Center and the VA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to have been fully eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so.  The program was implemented in July 2009 and he retired on 3 February 2010.  Prior to retirement, he did not apply for the transfer of benefits while in an active status.

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 various criteria to qualify to transfer benefits to an eligible dependent; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The applicant continued to serve until he retired in February 2010.  His service and his sincerity are not in question.  However, since the program was implemented in August 2009, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence. 

4.  There is neither an error nor an injustice in the applicant's transfer of benefits processing. Therefore, he is not entitled to the 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)                                         AR20110018785



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ABCMR Record of Proceedings (cont)                                         AR20110018785



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