IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110021656 


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 his educational benefits to eligible dependents under the Transfer of Education Benefits (TEB) provisions of the Post-9/11 GI Bill.

2.  The applicant states he would like to transfer education benefits to his son.  The last days before his retirement date, a decision was made by the Army leadership that they could transfer the 9/11 GI Bill to a family member which he tried doing the day before his retirement.  Once he retired he was unable to go into his account and verify the transfer.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 30 September 1989 and he was honorably retired on 31 August 2009.  He was credited with completing a total of 23 years and 20 days of net active service and he had no lost time.

2.  In an advisory opinion, dated 23 December 2011, the Interim Chief, Programs and Services Branch, Army Human Resources Command (HRC), recommended administrative relief for the applicant.  The HRC official stated:

   a.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, the law 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.  Based on the following details administrative relief was recommended for the applicant because he had already submitted a TEB request on 20 August 2009 with 15 months each to his two children.  
   
	b.  The Department of Veterans Affairs (VA) is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.  No evidence was provided by the applicant that shows his dependents made a previous claim to the VA.  If he is granted relief, the beginning date for his dependents to use the transfer of benefits will be 20 August 2009, the date he transferred education benefits.  However, the VA will only pay one retroactive year from the date a claim is received by the VA.

	c.  Education Incentives Branch contacted the applicant on 23 December 2011 to inform him of his previous approval from the transfer of education benefits, how to access the TEB website, and for the need to also contact the VA when making future changes to the TEB.  The applicant's dependents will need to contact the VA for further action in obtaining use of Post 9/11 GI Bill education benefits.

3.  On 5 January 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  He did not respond.

4.  On 22 June 2009, the Department of Defense established the criteria for eligibility and transfer of unused education 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 Department of Defense) 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 service 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 contends his records should be corrected to allow him, as an exception to policy, to transfer his educational benefits to eligible dependents under the TEB provision of the Post-9/11 GI Bill.

2.  The evidence of record shows he submitted a TEB request on 20 August 2009.  He was honorably retired on 31 August 2009 after completing more than 23 years of service.  The HRC opined that although significant measures were taken to disseminate the transferability of unused Post 9/11/ GI Bill benefits many Soldier who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.  

3.  The beginning date for his dependents to use the transferred benefits will be 20 August 2009 the date he transferred education benefits.  His dependents will need to contact the VA for further action in obtaining use of Post 9/11 GI Bill education benefits.  Based on the foregoing and as a matter of equity, he is eligible to transfer his benefits to either his spouse or children under the TEB provisions of the Post-9/11 GI Bill.



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 on 20 August 2009, 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)                                         AR20110021656





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ABCMR Record of Proceedings (cont)                                         AR20110021656



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