IN THE CASE OF:	 

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110020085 


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 transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his family members.

2.  The applicant states:

* He had already outprocessed and was on transition leave at the time this program was implemented
* He did not get the information or was not informed of the requirements to declare family members he could transfer his MGIB benefits to prior to retiring
* The information available at the time of his retirement was conflicting and confusing
* He retired on 31 August 2009 and like many others, little information was available about this program

3.  The applicant provides his request for voluntary retirement, DD Form 214 (Certificate of Release or Discharge from Active Duty), and retirement orders.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the California Army National Guard and he executed an oath of office on 20 January 2000.

2.  He served in a variety of stateside and/or overseas assignments in an Active Guard Reserve (AGR) status and he attained the rank of major (MAJ). 

3.  He underwent a pre-separation briefing on 29 May 2009.  He checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 (Preseparation Counseling Checklist) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information; counseling; or to attend additional workshops, briefings, classes, etc.

4.  On 31 August 2009, he was retired by reason of sufficient service for retirement and he was placed on the Retired List in his retired rank of MAJ on 1 September 2009.  He was credited with 20 years and 22 days of creditable active service.

5.  During the processing of this case, on 30 April 2012 an advisory opinion was obtained from the National Guard Bureau (NGB).  The advisory official recommended approval of the applicant's request because the applicant left the military within 90 days of implementation of the program.  The official stated:

	a.  The applicant states he was in the process of retiring from the ARNG and he was on transition leave at the time new guidance concerning the transfer of education benefits to family members were made available.  His last day of service with the ARNG was 31 August 2009.

	b.  Public Law 110-252, as amended by Public Law 111-377, identifies the qualifying Title 10 and Title 32 Soldiers.  A service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.  Public Law 110-252 also establishes the legal requirements on the transferability of unused Post-9/11 GI Bill benefits.  This law limits the transfer of unused benefits to those members of the Armed Forces who are serving on Active Duty or as a member of the Selected Reserve on or after 1 August 2009.

	c.  The ARNG, 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 on the Post-9/11 GI Bill and subsequent transfer of education benefits.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, 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 Soldier retired within 90 days of the program’s implementation. 

	d.  The NGB's Personnel Programs, Resources and Manpower Division reviewed the applicant's available records, and determined that he was eligible for the Post-9/11 GI Bill, but he did not complete a request to transfer benefits on the Department of Defense’s Transfer Education Benefit online database before he left the service.  Based on the aforementioned details, their office recommends administrative relief for the Soldier.  The State concurs with this recommendation. 

6.  On 1 May 2012, the applicant was provided with a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

7.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member is any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and:

	a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve the maximum amount of time allowed by such policy or statute; or

	c.  is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013.  A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service.

8.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

9.  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.  The policy states that 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.  However, the policy does apply to those retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement; however, he did not do so.  The program was implemented in July 2009 and he retired on 31 August 2009.  Prior to retirement, he did not apply for the transfer of benefits while on active duty.

2.  The DOD, VA, and the Army conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent, two of which are:

* be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action)
* have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of the request, unless retirement eligible

3.  Nevertheless, 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 60 to 90 days of the programs implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  The applicant's retirement date was 31 August 2009.  It is reasonable to presume that had the applicant 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 that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the state Army National Guard records and the 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 benefits to his family members prior to his 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)                                         AR20110020085



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ABCMR Record of Proceedings (cont)                                         AR20110020085



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