IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019001 


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 records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his educational benefits to his dependents before he was medically retired from active duty on 23 September 2009.

2.  The applicant states he began transition leave in July 2009 and was not aware of the transfer process.

3.  The applicant provides a copy of his retirement orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 August 1989 for a period of 4 years, training as a tank mechanic, and a cash enlistment bonus.  He completed his training and remained on active duty through a series of continuous reenlistments.  He was promoted to pay grade E-7 on 1 December 2004.

2.  On 23 September 2009, he was honorably retired from active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), due to permanent disability.  He was placed on the Retired List effective 24 September 2009.  He completed 20 years, 1 month, and 1 day of active service.

3.  During the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who stated the applicant was not eligible to transfer benefits under the Post-9/11 GI Bill to his dependents as he was separated from military service prior to transferring his benefits.  It further states the Army, Department of Defense, and Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues and that information on the program and subsequent transfer of entitlements were published well in advance of the implementation date of 1 August 2009.  However, because the applicant was separated within 90 days of the implementation of the program it was recommended that his request be approved because many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

4.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

5.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute the transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

6.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service is required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he applied for and the Army approved transferring his educational benefits under the Post-9/11 GI Bill to his dependents prior to his retirement from active duty on 23 September 2009 has been carefully considered and is found to have merit.

2.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.

3.  Although the applicant did not make his application before retirement, it is reasonable to presume that he was not informed that he had to make his transfer of educational benefits while he was still on active duty, given the close proximity of the applicant's retirement on 23 September 2009 to the effective date of the Post-9/11 GI Bill (1 August 2009) and the fact he was undergoing transition disability retirement processing prior to the implementation date.  This is especially true if he were on transition leave prior to retirement.

4.  It is also reasonable to presume given the timing of the implementation of the program and the applicant's retirement that he very well could have fallen through the cracks and was not notified – and it is not reasonable that he would not have enrolled while he was on active duty if he had known since he had eligible dependents and a need for the benefits.

5.  Given the circumstances in this case, it would serve the interest of equity to correct his record to reflect he applied to transfer his educational benefits under the Post-9/11 GI Bill transferability provision upon implementation of the provision.

BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 educational benefits to his dependents prior to his retirement, provided all other 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)                                         AR20110019001



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ABCMR Record of Proceedings (cont)                                         AR20110019001



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