BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110018824 


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 military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his dependents under the Transfer of Education Benefits (TEB) provisions of the Post 9/11 MGIB.  

2.  The applicant states he believes a mistake was made by the out-processing staff at Fort Rucker, AL.  He was not correctly briefed on the procedures to transfer education benefits.  The program was in its infancy at the time he was out processing and the education center was closed due to a contractual issue.  Therefore, he would like to have that mistake rectified by allowing him to transfer his education benefits to his son.

3.  The applicant provides:

* Enlisted Record Brief
* retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 November 2009
* a letter, dated 12 September 2011, from the Education Service Officer (ESO) at Fort Rucker, AL

CONSIDERATION OF EVIDENCE:

1.  On a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 31 August 2009, he indicated he did desire further counseling concerning education benefits.
2.  On 30 November 2009, he was retired and placed on the Retired List the following day.  He was credited with 24 years, 11 months, and 4 days of creditable active service.

3.  He provided a letter, dated 12 September 2011, from the ESO at Fort Rucker. The ESO stated the education center counseling at Fort Rucker was performed by contract counselors.  On 1 October 2009, there was a contract protest.  During the time the applicant was out processing for retirement, counseling on the GI Bill was not available due to the contract issue.

4.  In the processing of this case, an advisory opinion, dated 20 December 2011, was obtained from the Education Incentives Branch at Human Resources Command (HRC), Fort Knox, KY, which recommended approval of the applicant's request to transfer Post 9/11 GI Bill education benefits.  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 service during the first 90 days of the program were not fully aware of the requirement to transfer education benefits prior to leaving military service.  

	a.  A Soldier must have been in an active duty status or in the Selected Reserve on or after 1 August 2009.  The applicant's last day of active duty was 
30 November 2009.  He cleared Fort Rucker on 30 October 2009 and started termination leave.  He would have been eligible to transfer the education benefit if he transferred them before he left active service.

	b.  A Soldier must have 6 years of eligible service to transfer the benefit to a spouse and 10 years to transfer the benefit to children.  He had over 26 years of active service and would have been eligible to transfer the benefit to either his spouse or children.

	c.  A Soldier must have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  He had three eligible dependents enrolled in DEERS.  He was eligible to transfer benefits to his spouse and two sons.

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

	e.  A Soldier must 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 was automatically relayed to the Department of Veterans Affairs (VA).  The respective dependent must then submit an application for VA benefits.  Since he states he was unaware of the requirements none of the steps to transfer benefits were taken.

	f.  The VA is restricted to pay for education benefits compensating no more than one retroactive year from the date a claim is received by the VA.  If he is granted relief, the beginning date for his dependents to use the transferred benefits would be the date of relief unless previous specific claims were submitted to the VA and verified by the VA upon approval.

5.  On 29 December 2011, the applicant responded to the HRC advisory opinion by stating, in effect that:

	a.  During his out processing he attempted to contact the education office to inquire about the transfer process for his Post 9/11 GI Bill education benefits.  However, due to the contractual issue, he was unable to make contact until after retirement.

	b.  His son submitted a claim to the VA and it was denied because the applicant had not designated the transfer of benefits prior to retirement.  The applicant requests that if his application to this Board is approved that the beginning date for transfer of benefits be 1 January 2011.

6.  On 22 June 2009, the Department of Defense (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.

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.

8.  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 he did not do so.  The program was implemented in July 2009 and became effective on 1 August 2009.  He retired on 30 November 2009. 

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.  In this case the confusion regarding eligibility and procedures to apply for the benefit was further exacerbated by the fact the education center was closed due to a contract dispute with the civilian counselors tasked with counseling Soldiers concerning the transfer of Post 9/11 GI Bill benefits.

5.  The applicant's retirement date was 30 November 2009; however, he cleared Fort Rucker on 30 October 2009 and the education center had been closed since 1 October 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 applied to transfer his education benefits in a timely manner prior to his effective date of retirement.  

6.  Post 9/11 GI Bill benefits are paid by the VA.  The effective date of payments is determined by that agency.  The applicant may resubmit his claim to the VA, including evidence of their previous denial, based on the determination by the Army Board for Correction of Military Records.  

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)                                         AR20110018824



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ABCMR Record of Proceedings (cont)                                         AR20110018824



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