IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20110021113 


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, an exception to policy to transfer educational benefits under the Transfer of Education Benefits (TEB) provision of the 
Post-9/11 GI Bill to his daughters.

2.  The applicant states:

* he applied to transfer his benefits in September 2010, when his daughters entered college, and he was denied
* he earned eligibility for the full Post-9/11 GI Bill which included the ability to transfer his benefits if he so desired
* he was not informed of the requirement to transfer the benefit during his demobilization in February 2010, retirement in August 2010, or at any other time
* he had always made it clear to his command that the reason he extended in a combat zone was to earn GI Bill education benefits for his children
* had he known he had to transfer benefits during his service, he would have done so immediately

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he entered onto active duty in the rank/grade of major (MAJ)/O-4 while a member of the Army National Guard (ARNG) on 25 October 2006.  He performed service in Africa from 18 November 2006 through 3 February 2010.  He was released from active duty on 30 April 2010.
 
2.  After completing nearly 23 years of service for retired pay, the applicant was transferred from the Alabama ARNG (ALARNG) to the U.S. Army Retired Reserve on 9 July 2010.

3.  There is no indication he applied to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his daughters while he was on active duty or as a member of the Selected Reserve on or after 1 August 2009.

4.  During the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB), who recommended disapproval.  The advisory official states:

	a.  The applicant stated he was not informed of the requirement to transfer his benefits during his demobilization in February 2010, retirement on 1 August 2010, or at any time during his service.  The applicant stated he had always made it clear to his command that one of the specific reasons he had extended as an ARNG Soldier in a combat zone for so long was to earn GI Bill education benefits for his children, and if there had been any mention of electing to transfer benefits during his service, he would have done so immediately.

	b.  Public Law 110-252, as amended by Public Law 111-377, identify the qualifying Title 10 and Title 32 duty that 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 (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.  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 (1 August-31 October 2009) were not fully aware of the requirement to transfer prior to leaving military service.  The applicant's last day in service was 9 July 2010, which was not within 90 days after the program’s implementation.

	d.  A memorandum, dated 29 February 2012, provided by ARNG, Personnel Programs, Resources and Manpower Division indicated their office reviewed the applicant’s available records, but did not provide a comment for their recommendation.

	e.  However, upon a review of the applicant's application, military records, and review by the GI Bill Benefits manager, they determined the applicant did not transfer his Montgomery GI Bill to Post-9/11 GI Bill while in service to comply with Post-9/11 GI Bill policies by transferring his benefits prior to separation/
retirement or within 90 days of the 1 August 2009 implementation date.

5.  On 16 July 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 29 July 2012, the applicant responded with a rebuttal, wherein he urged the Board to reject the advisory opinion and allow the transfer of his GI Bill education benefits to his daughters.  He requested the Board reject the opinion based on:

	a.  The NGB failed to acknowledge that from the initiation of their "massive public campaign" until the date he arrived at Fort Benning, GA to demobilize, he was on continuous NGB orders that placed him on assignment to the U.S. Embassy in Nairobi, Kenya and he was geographically isolated from not only his command but from the U.S. Army and most, if not all, of the communication channels mentioned in their opinion.  His sources of official U.S. Army information while on this assignment were from the command’s classified email Secret Internet Protocol Router Network sent via official classified Department of State and Unclassified but Sensitive Internet Protocol Router Network emails forwarded from his U.S. Army email to his Department of State email.  Therefore, he was not in a position to receive any of the messages contained in the campaign because he was isolated and living in the austere communications environment provided in a foreign country.  Due to his location in Kenya, unless communications were specifically addressed to him as a classified or unclassified official email, he did not receive them from public sources.

	b.  The NGB opinion failed to recognize that beyond the lack of notification, there was a failure to notify him of the requirement throughout his demobilization.  This failure to notify him was despite a week-long session specifically designed to prepare Soldiers for transition from active duty to civilian life.

	c.  Since the NGB opinion acknowledges that the information was required to be transmitted to Soldiers and has been willing to make an exception for Soldiers who did not get the message, he believes the Board could understand the exceptional circumstance which prevented his notification and should therefore grant an exception to policy based on the same reasoning the NGB has used to favorably grant Soldiers who were within 90 days of the implementation date.

6.  On 22 June 2009, the Department of Defense established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 from 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.

7.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows the applicant was eligible to transfer his educational benefits to his daughters under the TEB prior to his transfer to the Retired Reserve, but there is no evidence to show he did so.  He contends there was a failure to notify him of the requirement throughout his deployment in Kenya, his demobilization in February 2010, and his subsequent retirement.  This failure to notify him was despite a week-long session specifically designed to prepare Soldiers for transfer from active duty to civilian life and a "massive public campaign."

3.  Notwithstanding the advisory opinion, in view of the fact it was a new program and due to his geographical separation, (nearly 3 1/2-year tour of duty in the U.S. Embassy in Nairobi, Kenya) which coincided with the ARNG, Department of Defense, and VA's public campaign, it is reasonable to presume the applicant was not properly informed of the TEB rules prior to his transfer to the Retired Reserve.

4.  Therefore, in the interest of equity and fairness, it would be appropriate to change his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill Transferability Program on 8 July 2010.

BOARD VOTE:

___X____  ____X __  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 Army timely received his application and determined he met the qualifications for transfer of his educational benefits, and approved his request before his transfer to the Retired Reserve on 9 July 2010.



      __________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)                                         AR20110021113



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ABCMR Record of Proceedings (cont)                                         AR20110021113



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