IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20110018851 


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 records to show his eligible family members were listed in the official Transfer of Education Benefits (TEB) online database and to transfer his GI Bill educational benefits to his eligible family members (spouse and daughter) under the Post-9/11 GI Bill transferability option.

2.  The applicant states his retirement processing occurred in August 2009 and the initial stand-up of the new GI Bill occurred during this period.  The program's information was not always available or correct and he was not told that he had to initiate the transfer of GI Bill benefits prior to leaving active duty.

	a.  His last duty assignment was as the Senior Army Advisor in St. Paul, MN with the Minnesota Army National Guard (MNARNG).  Gaining access to active duty program information was difficult and his retirement processing was accomplished either by telephone or in a temporary duty status at three different locations.

	b.  He was provided limited information regarding adding funds to his GI Bill account to increase the benefit.  However, very little information was provided regarding the new GI Bill because the procedures were still being developed.

	c.  The time between the date his retirement application was approved (on
31 July 2009) and his last day in uniform (17 September 2009) was just 47 days.  He received a flier on the new GI Bill, but no mention was made of the deadline to transfer benefits and there just wasn't a lot of time for him to obtain all the necessary information regarding the new GI Bill before he left active duty.

	d.  He adds that the Post-9/11 GI Bill was implemented on 1 August 2009.  He went on transition leave during the period 18 September through
30 November 2009 and he was placed on the Retired List on 1 December 2009.

3.  The applicant provides the following documents in support of his request:

* Post-9/11 Veterans Educational Assistance Act of 2008 pamphlet
* DA Form 137-2 (Installation Clearance Record)
* Application for Voluntary Retirement and Orders
* DA Form 31 (Request and Authority for Leave)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the U.S. Army and he entered active duty on 9 September 1983.  He was promoted in the Regular Army (RA) to the rank/grade of colonel (COL)/O-6 on 1 April 2004.

2.  On 20 July 2009, the applicant requested voluntary retirement from the RA effective 1 December 2009.  He also requested 74 days of transition leave beginning on 18 September 2009.

3.  Orders 237-0004,, issued by the Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, CO, dated 25 August 2009, as amended by Orders 265-0028, same headquarters, dated 22 September 2009, show the applicant was retired from active duty on 30 November 2009 and he was placed on the Retired List effective 1 December 2009.

4.  A DD Form 214 for the period ending 30 November 2009 shows the applicant was retired by reason of sufficient service for retirement.  He completed 27 years and 22 days of creditable active service.

5.  In the processing of this case, on 20 December 2011, an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC), Education Incentives Branch, Fort Knox, KY.

	a.  The advisory official recommends administrative relief for the applicant.

	b.  The advisory official notes the applicant was eligible to transfer benefits under the Post-9/11 GI Bill transferability program.
		(1)  He was on active duty on 1 August 2009 and his last day of active duty service was 30 November 2009.

		(2)  He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children.

		(3)  He was eligible to transfer his educational benefits to the following family member who was enrolled in the Defense Eligibility Enrollment Reporting System (DEERS):  Toni D. W---- (spouse).

		(4)  He was eligible to transfer educational benefits to her, if he completed the request before leaving military service; however, he did not.

	c.  The advisory official notes the Department of the Army, Department of Defense, and Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of
1 August 2009.

		(1)  The applicant began an extended period of leave prior to his retirement on 1 December 2009 and claims he was not aware of the requirement to transfer prior to leaving service.

		(2)  The advisory official adds that, although significant measures were taken to disseminate information, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.

6.  On 22 December 2011, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

7.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended
Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.
	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the armed forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

	b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.

	c.  To satisfy this legally imposed constraint, a child must be an eligible family member at the time of transfer.  To be considered an eligible family member, a child must be enrolled in DEERS and eligible for DEERS benefits.

		(1)  Children lose eligible family member status upon turning age 21, or at marriage.

		(2)  Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried, as verified by DEERS.

		(3)  Family member children can use transferred benefits up to the age
of 26.

	d.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

8.  Army Regulation 600-8-14 (Identification (ID) Cards for Members of the Uniformed Service, Their Eligible Family Members, and Other Eligible Personnel) provides instruction to prepare, issue, use, account for, and dispose of ID cards. Chapter 4 (ID Cards for Children), Table 4-4 (Eligibility Criteria and Documentation Requirements for Students Age 21 to 23), shows an eligible child enrolled full-time in an accredited institution of higher learning, and is dependent on the sponsor for over 50 percent of their support, remains eligible as a family member of the sponsor until age 23 or graduation, whichever occurs first.

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.

2.  He was eligible to transfer his educational benefits to his family member who was enrolled in DEERS; specifically, to Toni D. W---- (his spouse).   However, the evidence of record does not show the applicant had an eligible daughter (i.e., enrolled in DEERS) to transfer his educational benefits to at the time of his retirement.

3.  The advisory opinion points out many Soldiers who 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.

4.  The applicant began an extended period of absence on 18 September 2009, which was within 90 days after the program's implementation, and he retired from active duty on 30 November 2009.  As such, he may not have been aware of the requirement to transfer his benefits prior to leaving military service.

5.  Therefore, 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 member (spouse) prior to his retirement date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X  ___  __ X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his military records to show he elected to transfer benefits under the Post-9/11 GI Bill Transferability Program to his eligible family member (spouse) prior to his retirement date providing all other program eligibility criteria are met.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the transfer of benefits under the Post-9/11 GI Bill Transferability Program to his daughter prior to his retirement date.



      __________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)                                         AR20110018851



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ABCMR Record of Proceedings (cont)                                         AR20110018851



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