IN THE CASE OF:  

		BOARD DATE:	16 February 2012

		DOCKET NUMBER:  AR20110020812 


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 he elected to transfer his Post-9/11 GI Bill educational benefits to his children.

2.  The applicant states:

	a.  He was denied the opportunity to transfer his Post 9/11 GI Bill benefits to his children.  He did not receive the complete and accurate information necessary to transfer his educational benefits prior to his retirement.  He requests he be allowed to make that election now by having the transfer benefits reinstated.

	b.  His retirement date was 1 April 2010.  He went to the Department of Veterans Affairs (VA) and Department of Defense Manpower Data Center (DMDC) websites in 30 December 2010 to transfer his benefits to his children and he was denied because he was supposed to have made the transfer decision while still on active duty. 

	c.  This information was not covered in any of the retirement briefings he attended, nor was he given any information paper that explained the benefit or requirement to transfer prior to leaving active duty.  Had he known about the need to make a transfer decision while still on active duty he certainly would have done so.

	d.  He will have three children attending college over the next 9 years, and using this benefit was certainly in his retirement and financial planning.  
	e.  The Army's General Officer Management Office (GOMO) which provided out processing guidance for general officers was aware he had three children under the age of 18.

	f.  His clearance papers show that he was not scheduled to go to the Education Center to out process, and therefore he didn't go.  When he asked about GI Bill benefits at his final out processing appointment the branch chief at Fort Myer told him that he could use the benefits or transfer them.  No mention was made of a suspense date; he was told to  just apply for the benefits when he was ready to use them.  He received nothing in writing at the final out processing appointment.

	g.  There was no information presented to retiring general officers after August 2009, when the transfer option became available.  There was not a briefing or information paper in the GOMO transition course material that he received in January 2009.  

	h.  He has pursued this matter with the GOMO through a number of email notes and has been advised that there is nothing that can be done.  

	i.  He brought up the case of Brigadier General A____, who was initially denied the option to transfer his GI Bill benefits, but was granted an exception due to incomplete advisement from the GOMO.  The applicant requests the same exception. 

3.  The applicant provides copies of:

* his retirement orders 
* Service Computation for Separation form
* DA Form 137-2 (Installation  Clearance Record)
* Email notes between him and the GOMO
* Memorandum, Subject:  Voluntary Retirement, dated 8 May 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the Army, effective 1 April 2010, in the rank of lieutenant general/O-9. 

2.  In the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY.  The opinion recommended disapproval and stated:

	a.  Section 3020, Public Law 110-252 limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve.  Relief is not recommended unless the applicant can provide evidence showing he attempted to transfer prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits. 	

	b.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), and VA 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.  The applicant's last day in the service was 31 March 2010, which was not within 90 days after the program's implementation.

	c.  A Soldier must initially request to transfer benefits on the DOD's Transfer of Education Benefits (TEB) online database.  The TEB database was operational 29 June 2009.  The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	d.  Brigadier General A____, referenced by the applicant, submitted a TEB request prior to retirement. 

3.  On 3 January 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his response he states:

	a.  He recommends the Board reject the HRC advisory opinion.  He was denied the opportunity to transfer his benefits to his eligible family members as a result of incomplete and inaccurate information he received prior to his retirement.

	b.  The advisory opinion merely restates the policies on transfer of benefits. His application clearly outlines the circumstances whereby he was given incomplete information by GOMO and the Fort Myer Transition Point. 

	c.  The opinion validates that he meets the eligibility criteria to transfer his benefits.  He is not asking for a benefit that he is not eligible for, he is simply asking that he be allowed to make the transfer decision now.

	d.  The implementation of the program occurred in the nine months prior to his retirement.  While the opinion makes a statement about granting relief based on lack of knowledge during the first 90 days, the lack of knowledge for general officers being advised by the GOMO continued past his 1 April 2010 retirement date.  The error in the GOMO out processing has been corrected but the correction needs to be applied retroactively to those who were ill advised.

	e.  His clearance papers showed he was not scheduled to go to the education center to out process.  When he asked about GI Bill benefits at his final out processing appointment at Fort Myer he was told verbally by the personnel branch chief that he could use the benefits or transfer them, but there was no mention of a suspense date.

	f.  The opinion indicates that Brigadier General A____ did make a TEB request for transfer before his retirement.  That was not his recollection when the applicant included Brigadier General A____'s situation in his application.  The issue of incomplete information for retiring general officers during the first nine months of implementation remains.  

4.  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.

5.  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.

6.  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, in part, 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 so 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 requests correction of his records to show he elected to transfer his Post-9/11 GI Bill educational benefits to his children.

2.  DOD established the criteria for the TEB provision of Post-9/11 GI Bill education benefits on 29 June 2009.  In 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 before he left military service.

3.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but he did not do so.   

4.  The applicant claims officials at Ft Myer and the GOMO did not properly inform him of the process to transfer his Post-9/11 GI Bill benefits.  The DOD, VA, and the Army conducted a massive public 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.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly a year after the program was implemented.

5.  The applicant retired from the Regular Army without transferring his educational benefits.  By law he is no longer eligible to transfer his benefits.

6.  In view of the above, there is no basis for granting the applicant's requested relief.

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.



      _______ _  _XXX_______   ___
               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)                                         AR20100021133



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ABCMR Record of Proceedings (cont)                                         AR20110020812



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