IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110018786 


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 transfer of his educational benefits to his family members under the Post 9/11 GI Bill Transferability Program.

2.  The applicant states:

* he retired from active duty on 31 October 2009 after completing more than 26 years of service
* he out-processed at Fort Lewis, WA on 28 July 2009
* Fort Lewis did not have the complete information about the Post 9/11
GI Bill Transferability Program to properly advise retirees when he went on transition leave
* he knew he had to have been on active duty beyond 1 August 2009, but did not know the rest of the requirements

3.  The applicant provides his:

* retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 31 (Request and Authority for Leave)
* reenlistment documents


CONSIDERATION OF EVIDENCE:

1.  After completing over 26 years of creditable active service, the applicant retired from active duty on 31 October 2009 in the rank of command sergeant major.

2.  He provided a DA Form 31 showing he was on transition leave from 28 July 2009 through 1 November 2009.

3.  During the processing of this case, on 1 November 2011, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1.  The advisory official states, in summary that:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve. 

	b.  a Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her family members (on or after 1 August 2009).  The applicant’s last day in service was 31 October 2009.  He would have been eligible to transfer the benefit if he transferred before he left the service.

	c.  a Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse or at least 10 years of eligible service to transfer to eligible children.  He had more than 26 years of service upon his retirement, so he was eligible to transfer to either his spouse or children (if he completed the request before leaving military service).

	d.  a Soldier may only transfer to eligible family members.  He had three eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  He did not complete the requirements in the Transfer of Education (TEB) online database because he claims he was not aware of the requirement to transfer prior to leaving service.

	e.  a Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If the applicant transferred his benefits prior to leaving military service he would not have incurred an additional service obligation because he had more than
20 years of service as of 1 August 2009.


	f.  a Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant's record.  He received an honorable discharge.

	g.  a Soldier 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.  His last day in the service was 31 October 2009, which was within 90 days after the program’s implementation.

	h.  a Soldier must initially request to transfer benefits on the DOD's TEB online database.  The TEB online was operational on 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for Department of Veterans Affairs (VA) access.  The respective family member must then submit an application for VA education benefits to request to use the benefits.  The applicant claims he was not aware of the requirement; therefore, none of the required steps to transfer such benefits were taken.

	i.  changes to the amount of months allocated to family members can be made at anytime, to include once you leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

	j.  the VA is restricted to pay for education benefits by compensating no more than 1 retroactive year from the date a claim is received by VA.  No evidence was provided by the applicant that his family members made a previous claim to VA.  If the applicant is granted relief the beginning date for his family members to use the transferred benefits will be the date granted relief unless previous specific claims were submitted to VA (verified by VA upon approval).

4.  The advisory official recommends administrative relief for the applicant because he left service within 90 days of the implementation of the program.  He states although significant measures were taken to disseminate the information to all Soldiers within Army components during the initial phase of the program, many Soldiers that left service during the first 90 days of the program were not fully award of the requirement to transfer prior to leaving military service.

5.  On 3 November 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded on 4 November 2011 with his concurrence.
6.  On 22 June 2009, Department of Defense (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.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the Post 9/11 GI Bill Transferability Program prior to his retirement.  However, because of the newness of the program and confusion concerning its implementation, he did not make application prior to retiring.

2.  The advisory official points out:

* many Soldiers that left the service during the first 90 days of the program were not fully aware of the requirement to transfer Post 9/11 benefits prior to leaving military service
* the applicant’s last day in service was 31 October 2009
* he would have been eligible to transfer the benefit if he transferred before he left the service
3.  The applicant retired on 31 October 2009, which was within 90 days after the program’s implementation.  Therefore, per the advisory official's recommendation, it would be appropriate to correct his military records to show he elected to transfer benefits under the Post 9/11 GI Bill Transferability Program to his eligible family members prior to his retirement date.

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 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)                                         AR20110018786



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ABCMR Record of Proceedings (cont)                                         AR20110018786



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