BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110019543 


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 approval of transfer of educational benefits (TEB) under the Post 9/11 GI Bill to his dependents.

2.  He states he believes his request is justified based on:

* During outprocessing, the educational counselor indicated there was no issue with his TEB under the Post 9/11 GI Bill 
* Lack of specific published information at the time he submitted his retirement packet and during retirement processing
* No specific implementation details available, which may have affected his decision to retire

3.  He provides the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders P-03-990052, dated 5 March 2009
* Online TEB request
* Online Beneficiary Web Enrollment
* DD Form 93 (Record of Emergency Data)

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years, 2 months, and 23 days of active duty service, the applicant was retired on 31 July 2009 in the grade of major (MAJ)/04. 

2.  He provides Orders Number P-03-990052, dated 5 March 2009, that show he was placed on the Retired List on 1 August 2009.

3.  His Beneficiary Web Enrollment and his DD Form 93 list his spouse and two children as his dependents.  However, his TEB request shows that no family members were listed.  

4.  During the processing of this case, on 9 January 2012, a unfavorable advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch, which recommended to deny administrative relief to the applicant because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.  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 in service was 31 July 2009.  He is not eligible to transfer his Post 9/11 GI Bill benefits.
   
   b.  A Soldier must have at least six years of eligible service in order to TEB to a spouse and at least ten years of eligible service to TEB to eligible children.  The applicant had more than 25 years of service upon his retirement, but he was not eligible to transfer to either his spouse or his children because the law requires Soldiers to be in the service on or after 1 August 2009.

5.  He was provided a copy of this advisory opinion and responded on 
31 January 2012.  He reiterates the same information provided in his application and opines that based on the short time difference between his date of retirement and the date eligible for the TEB under the Post 9/11 GI Bill (24 hours) he should be granted an exception to policy.  He emphasizes the massive public campaign launched by the Human Resources Command regarding the Post 9/11 GI Bill and questions the effectiveness and level of audience saturation by the campaign.  He states the campaign recommended Soldiers contact their educational counselors for more information, which he did.  He maintains that the counselors led him to believe he could transfer his benefits to his dependents. 

6.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  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.  Therefore, this information would have been available to the applicant prior to the effective date of his retirement.
7.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service 
member may execute 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 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.

8.  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 required;

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

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

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

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service 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 contends since he was given the wrong information by the educational counselors and he only missed the date eligible to TEB by 24 hours, he should be given an exception to policy and allowed to TEB to his dependents under the Post 9/11 GI Bill.

2.  Even if he was given the wrong information by the educational counselors, the evidence shows he was not fully eligible to TEB under the Post 9/11 GI Bill.  

3.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  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.  Therefore, this information would have been available to the applicant prior to the effective date of his retirement.

4.  The law requires a member to be in an active status at the time he/she requests the transfer.  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.  Therefore, the applicant was not in an active status on 1 August 2009 and is not eligible to transfer his education benefits to his family members under the TEB provision of the Post-9/11 GI Bill.

5.  In view of the above, his request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  ____x____  ____x____  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ 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)                                         AR20110019543





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ABCMR Record of Proceedings (cont)                                         AR20110019543



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