IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019081 


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 was authorized to transfer his educational benefits (TEB) under the Post-9/11 GI Bill to his eligible dependents.

2.  The applicant states his effective date of retirement from the U.S. Army was 1 September 2009.  He completed his out-processing and signed out at Fort Gordon, Georgia, in May 2009.  When he left Fort Gordon, the Education Center did not have the procedures and could not advise him on what to do once the Post-9/11 Bill became effective.  He was not advised prior to surrender of his active duty identification (ID) card.  He needed that ID card to transfer his TEB.  There were no notifications provided to him while he was on terminal leave.  He was not informed or provided an opportunity to transfer his TEB.

3.  The applicant provides copies of his retirement orders and DD Form 214 (Certificate or Transfer or Release from Active Duty) effective 31 August 2009.

CONSIDERATION OF EVIDENCE:

1.  After completing over 25 years of active service, the applicant retired from the Army on 31 August 2009.

2.  During the processing of this case, a favorable advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 27 December 2011.  The opinion recommended granting administrative relief to the applicant because he was separated from active duty within 90 days of the Post-9/11 GI Bill Transferability Program implementation on 1 August 2009.  The advisory official acknowledged that many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.  The advisory official stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of TEB to his/her dependent (on or after 1 August 2009).  The applicant's last day of active duty service was 31 August 2009.  Therefore, he would have been eligible to transfer his educational benefits while still on active duty.

	b.  The applicant was eligible to participate in the program and he had dependents eligible to receive those benefits.

	c.  The applicant had more than 25 years of service when he retired; therefore, he would not have incurred an additional service obligation.  Further, he had no record of adverse action.

3.  On 28 December 2011, a copy of the advisory opinion was sent to the applicant for his for information and opportunity to submit comments and/or rebuttal.

4.  On 6 January 2012, the applicant stated in his written reply that he had no additional comments or corrections to submit to the Board.

5.  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 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs 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 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, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

7.  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 requests approval of TEB under the Post-9/11 GI Bill to transfer his educational benefits to his dependents.

2.  The applicant had over 25 years of service upon his retirement, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefits to either his spouse or children if he had transferred the benefits before he left the service.

3.  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 90 days of the program implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  His retirement date was 31 August 2009.  It is reasonable to presume that had he 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 did so in a timely manner prior to his effective date of retirement.

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 both timely and accurately and that the Army approved his request to transfer Post-9/11 GI Bill benefits to his dependents prior to 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)                                         AR20110019081



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ABCMR Record of Proceedings (cont)                                         AR20110019081



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