IN THE CASE OF:	  

		BOARD DATE:	 10 April 2012

		DOCKET NUMBER:  AR20110019871 


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 education benefits to his dependents before he was retired from active duty on 31 August 2009.

2.  The applicant states, in effect, that he began transition processing in May 2009 and he was not aware of the transfer process nor were the officials at the Great Lakes Naval Station where he began his processing.  He further states that officials at Fort Knox, Kentucky were also not informed of the process when he out-processed on 10 July 2009; accordingly, he was not informed of the procedures until after he retired on 31 August 2009.  

 3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned on 27 May 1987, entered active duty that date, and served as an Engineer Corps officer until he was retired in the rank of lieutenant colonel on 30 August 2009.  He was transferred to the Retired List effective 1 September 2009.  He had served 22 years, 3 months, and 4 days of active service.

2.  During the processing of this case an advisory opinion was obtained from the Education Incentives Branch of the Human Resources Command,  at Fort Knox, Kentucky, which states, in effect, that 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 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 the applicant responded to the effect that he concurred with the advisory opinion. 

3.  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.

4.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education 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.

5.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, the member is entitled to transfer benefits to 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 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 education benefits under the Post-9/11 GI Bill to his dependents prior to his retirement from active duty on 31 August 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.  Notwithstanding that the applicant did not make his application before retirement, it appears reasonable to presume given the close proximity of the applicant's retirement (31 August 2009) to the effective date of the Post-9/11 GI Bill (1 August 2009), and given the fact he was undergoing transition retirement processing prior to the implementation date, that he was not informed he had to make his transfer of education benefits while he was still on active duty.  This is especially true if he was 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 date he very well could have fallen through the cracks and was not notified.  It is not reasonable that he would not have enrolled while he was on active duty, if he had known, given that he had eligible dependents.
5.  Therefore, given the circumstances in this case, it would serve the interest of equity to correct his record to reflect he applied to transfer his education 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:

1.  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 education benefits to his dependents prior to his retirement, provided all other eligibility criteria are met.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20110019871



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ABCMR Record of Proceedings (cont)                                         AR20110019871



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