IN THE CASE OF:	  

		BOARD DATE:  8 May 2012

		DOCKET NUMBER:  AR20110021236 


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 military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his dependents under the Transfer of Education Benefits (TEB) provisions of the Post-9/11 MGIB.  

2.  The applicant states he met the eligibility requirements.  He declared his intent, via the application, to effect a transfer of benefits while still on active duty. He received a letter back from the Department of Veterans Affairs (VA) Regional Processing Office acknowledging his request and affirming his eligibility.  Neither the letter, the VA website, nor the VA briefing provided guidance stating the additional requirement to make the change in the automated system before leaving active duty.  

3.  The applicant provides:

* his retirement orders
* Transfer of Post-9/11 GI Bill Benefits to Dependents from the VA website
* his VA application
* VA letter of response, dated 31 August 2009
* Department of Defense (DOD) TEB website
* email from Army G-1 Post-9/11 GI Bill Team
* excerpt from Federal Benefits for Veterans Dependents & Survivors booklet published by the VA
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 October 2009
* a letter, dated 20 July 2011, to him from his Congressional representative
CONSIDERATION OF EVIDENCE:

1.  On 31 October 2009, he was retired and placed on the Retired List the following day.  He was credited with 23 years, 5 months, and 3 days of active service.

2.  He submitted an application for VA education benefits.  In a letter, dated 
31 August 2009, the VA acknowledged they had received his application indicated he wished to transfer his Chapter 33 benefits to his dependents.  The VA directed him to the DOD transferability application website to determine if his dependents were eligible to receive the transferred benefits.  However, the letter did not specifically inform him that the application had to be submitted while he was still in an active status.

3.  In the processing of this case, an advisory opinion, dated 21 February 2012, was obtained from the Education Incentives Branch at Human Resources Command (HRC), Fort Knox, KY, which recommended approval of the applicant's request to transfer Post-9/11 GI Bill education benefits.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components 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 education benefits prior to leaving military service.  

	a.  A Soldier must have been in an active duty status or in the Selected Reserve on or after 1 August 2009.  The applicant's last day of active duty was 
31 October 2009.  He would have been eligible to transfer the education benefit if he had transferred them before he left active service.

	b.  A Soldier must have 6 years of eligible service to transfer the benefit to a spouse and 10 years to transfer the benefit to children.  He had over 23 years of active service upon his retirement, so he was eligible to transfer to either his spouse or children (if he had completed the request before leaving military service).  

	c.  A Soldier must have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  He had three eligible dependents enrolled in DEERS as of 31 October 2009, his last day of service.  He was eligible to transfer benefits to his spouse and two daughters (if he had completed the request before leaving active service).  He did not complete the requirement in the TEB online database because he stated he was not aware of the requirement to transfer prior to leaving service.

	d.  A Soldier must agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If he had transferred his benefit prior to leaving military service he would have not incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.

	e.  A Soldier must initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on
29 June 2009.  Once approved in the TEB database, the information was automatically relayed to the Department of Veterans Affairs (VA).  The respective dependent must then submit an application for VA benefits.  Since he states he was unaware of the requirements none of the steps to transfer benefits were taken.

	f.  Changes to the amount of months allocated to dependents can be made at anytime, to include once he leaves military service, provided the service member allocates at least one month of benefits prior to separation.  The TEB website shows no action was taken by the applicant to transfer any benefits.

	g.  Soldiers 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 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 educational benefits.  The applicant's last day of military service was 
31 October 2009, which was within 90 days after the program's implementation.

	h.  The VA is restricted to pay for education benefits compensating no more than one retroactive year from the date a claim is received by the VA.  If he is granted relief, the beginning date for his dependents to use the transferred benefits would be the date of relief unless previous specific claims were submitted to the VA and verified by the VA upon approval.

4.  On 23 February 2012, the applicant responded to the HRC advisory opinion and stated he had nothing to add to the opinion.

5.  On 22 June 2009, the Department of Defense (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.

6.  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.

7.  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 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 but he did not do so.  The program was implemented in July 2009 and became effective on 1 August 2009.  He retired on 31 October 2009. 

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 two criteria to qualify to transfer benefits to an eligible dependent:  

* 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 October 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 applied to transfer his education benefits in a timely manner prior to his effective date of retirement.  
5.  Post-9/11 GI Bill benefits are paid by the VA.  The effective date of payments is determined by that agency.  

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 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 benefits to his dependents 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)                                         AR20110021236



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ABCMR Record of Proceedings (cont)                                         AR20110021236



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