BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110023142 


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 that when he retired, the information available to education counselors was not complete.  He spoke to the counselor specifically about transferring to the post 9-11 GI Bill from the Montgomery GI Bill.  He made this transfer but was not told anything about transferring the benefits to his children, which was discussed.  The counselor was not aware of this requirement prior to being discharged.  It was always his intention to make this transfer and he would have done so immediately if he had been made aware of the need to do so while still on active duty.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 August 2009
* email between him and the Army G-1, dated 10 and 17 November 2011

CONSIDERATION OF EVIDENCE:

1.  On 31 August 2009, he was retired and placed on the Retired List the following day.  He was credited with 29 years and 6 days of active service.  

2.  In the processing of this case, an advisory opinion, dated 24 January  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 August 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 more than 
20 years of 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).  The TEB online database shows he had three eligible dependents enrolled in DEERS as of 31 August 2009, his last day in service.  He was eligible to transfer benefits to his spouse and two children.  He did not complete the requirements in the TEB online database because he stated he was not aware of the requirement to transfer them prior to leaving service.

	d.  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.

	e.  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.

	f.  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 August 2009, which was within 90 days after the program's implementation.

	g.  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.

3.  The advisory opinion was forwarded to the applicant for possible rebuttal, however, he has not responded.  

4.  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.

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 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.  He 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 August 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.  His 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 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)                                         AR20110023142



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