IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110021826 


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

2.  The applicant states he was entitled to the benefits but he did not know about them until it was too late.  He retired from the Army on 31 August 2009, but with transition leave and out-processing, he actually signed out on 12 June 2009.  During his educational benefits briefing, the full details of the program were not available to education counselors.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Defense Eligibility Enrollment Reporting System (DEERS) Family Coverage printout
* DD Form 2648 (Pre-separation Counseling Checklist for Active Component Service Members)
* DA Form 137-2 (Installation Clearance Record)
* DA Form 31 (Request and Authority for Leave)
* Montgomery GI Bill (MGIB) newspaper article

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Regular Army warrant officer and executed an oath of office on 2 September 1994.  He subsequently served in a variety of stateside and/or overseas assignments and he attained the rank/grade of chief warrant officer four (CW4).

2.  He underwent a pre-separation briefing on 15 January 2009 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  He signed out of his unit on permissive temporary duty on 13 June 2009 and on transition leave on 3 July 2009.  His leave was approved through 31 August 2009, his date of retirement.

4.  On 31 August 2009, he was honorably retired and placed on the Retired List in the rank of CW4 on 1 September 2009.  He was credited with over 22 years of active service.

5.  During the processing of this case, an advisory opinion was obtained from the Education Incentive Branch, U.S. Army Human Resources Command, Fort Knox, KY, on 20 December 2011.  The advisory official recommended approval of the applicant's request because the applicant left the military within 90 days of implementation of the program.  This official also stated:

	a.  The individual must have been in an active duty status or in the Selected Reserve on or after 1 September 2009.  The applicant retired on 31 August 2009. 
He would have been eligible to transfer the benefits before he retired.

	b.  The individual must have 6 years of eligible service to transfer the benefits to a spouse and 10 years to transfer the benefits to children.  The applicant had over 22 years of service.  He would have been eligible to transfer the benefits to his spouse or child before he retired, if he completed the request before leaving military service.

	c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in DEERS and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS).  Wards of State are not eligible for the benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  The TEB online database shows the applicant has two eligible dependents enrolled in DEERS, his spouse and child, but he did not complete the requirements because he states he was unaware of the requirements.

	d.  The individual must agree to serve the prescribed additional service obligation based on time in service on 1 August 2009.  The applicant had more than 22 years of service on that date.

	e.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  There is no evidence of an adverse action in his record.

	f.  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 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 August 2009 which is within 90 days after program implementation.

	g.  A Soldier must initially request to transfer benefits on the DOD's TEB online database.  The TEB online database was operational 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits.  The applicant claims he was unaware of the requirement, so none of the steps to transfer the benefits were taken.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.

6.  The applicant did not respond to the advisory opinion.

7.  On 22 June 2009, DOD 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.

8.  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.

9.  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 not eligible to transfer unused Post-9/11 GI Bill benefits by law 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 available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement but did not do so.  The program was implemented in July 2009.  The applicant retired on 31 August 2009.  Prior to retirement, he did not apply for transfer of benefits while serving on active duty.

2.  The DOD, the 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.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.

3.  Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits.  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 program 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 August 2009.  It is reasonable to presume that had he 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 did so in a timely manner prior to his effective date of retirement.

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 applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members 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)                                         AR20110021826



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ABCMR Record of Proceedings (cont)                                         AR20110021826



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