BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110020095 


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 show his educational benefits were transferred to his daughter, in a timely manner, in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states he entered active duty for operational support (ADOS) on 16 August 2009 for what was to be a 3-year assignment in 1 year increments.  When he applied for an extension beyond the first year it was determined he had exceeded his mandatory removal date (MRD) at 28 years of service in the U.S. Army Reserve (USAR).  Therefore, the U.S. Army Human Resources Command (AHRC) immediately published orders removing him from active duty.  On 30 July 2010, he was called and told to start the process of retirement.

3.  He states the accumulated time he served on active duty from 2003-2005 and 2009-2010 allowed him to meet the eligibility requirements for the Post-9/11 GI Bill.  However, due to his being retroactively released from active duty he was unable to transfer his Post-9/11 GI Bill benefits to his daughter.

4.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders Number 211-1007 releasing him from active duty
* AHRC Form 4109 (Request for Extension of MRD)
* ADOS related documents
* AHRC-OPNPR-10-05-0000 Orders C-08-011217 (Transfer to the USAR)
* AHRC-OPNPR-10-05-0000 Orders C-08-011273 (Transfer to Retired Reserve)
* letters from his elected representative
* a Department of the Army (DA) Office of the Deputy Chief of Staff (DCS) , G-1 letter to his elected representative
* Department of Veterans Affairs (VA) letter to his elected representative
* letter to the Board from his elected representative
   
CONSIDERATION OF EVIDENCE:

1.  On 27 January 2003, as a member of the USAR, he entered active duty in support of Operation Noble Eagle.  The DD Form 214 he was issued at the time shows he was released from active duty on 23 July 2005.  He completed 2 years, 5 months, and 27 days of active duty during this period.

2.  On 17 August 2009, he entered ADOS.  The DD Form 214 he was issued at the time shows he was released from active duty on 31 July 2010.  He completed 11 months and 24 days of active duty during this period.  Remarks on this form indicate the form was created via phone conversation with the applicant.

3.  On 2 August 2010, due to non-selection for promotion to colonel, he was transferred to the USAR Control Group (Reinforcement) by AHRC Orders 
C-08-011217, dated 2 August 2010.

4.  On 3 August 2010, he was transferred to the Retired Reserve in the rank/grade of lieutenant colonel/O-5 due to completion of maximum authorized years of service.

5.  AHRC Form 871 (MRD Computation) shows his date of initial appointment was 26 May 1982 and his MRD was 1 June 2010.

6.  A DA DCS, G-1 letter to his elected representative, dated 14 September 2011, stated the applicant qualified for Post-9/11 education benefits based on his service record; however, Army and Department of Defense policies require a Soldier to be on active duty or a member of the Selected Reserve of the Army in order to transfer those benefits to dependents.

7.  There is no evidence in his records that shows he received pre-separation counseling concerning the Post-9/11 GI Bill or that he applied for the transfer of educational benefits to his dependents.

8.  Service requirements to gain eligibility for Post-9/11 GI Bill benefits include time served on active duty by Selected Reservists after 11 September 2001.  A reservist on active duty need only serve a minimum of 90 days to gain eligibility for 40 percent of the full (100 percent) authorized benefit of 36 months of full-time equivalent education at an approved educational institution.

9.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual 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 for 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.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to allow him to transfer his educational benefits to his daughter under the TEB provision of the Post-9/11 GI Bill.

2.  The available evidence shows he was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retirement, but he did not make application to do so while on active duty.

3.  The program was implemented on 1 August 2009.  The Army, DOD, and VA conducted a massive public information campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  Soldiers needed to meet two criteria to qualify to transfer benefits to an eligible dependent:  (a) they must be on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldiers do not have an adverse action flag) and (b) they must 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 request unless retirement eligible.

4.  Evidence indicates the applicant was eligible to complete and could have completed the TEB action necessary to transfer his Post-9/11 GI Bill education benefits to his daughter during the period 1 August 2009 to 31 July 2010.  The applicant has not indicated why he did not transfer his education benefits during this time.  It is reasonable to presume that he believed he had additional time in which to complete this action while serving on ADOS.  However, it is generally accepted that a Soldier still serving on active duty more than 90 days beyond the implementation date of the program had sufficient time to learn about the requirement to transfer at least some portion of their benefits to an eligible dependent prior to separation/retirement.  As such, there is an insufficient basis for granting the applicant's request.

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)                                         AR20110020095



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ABCMR Record of Proceedings (cont)                                         AR20110020095



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