IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110024019 


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 his records be changed to show he elected to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he knew transferability was a component of the 
Post 9-11 GI Bill but the specifics were not yet published at the time of his retirement application in January 2009.  His retirement orders were published in mid-February 2009.  It never occurred to him that he would not be eligible for the benefit after having served three combat tours in his career, two of them post-9/11, and meeting all other time in service requirements of the program.  At the time the final instructions were published he was already employed and unable to make any adjustments to his retirement time line, which he would have done to qualify.

3.  The applicant provides:

* retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 July 2009

CONSIDERATION OF EVIDENCE:

1.  He was commissioned a second lieutenant in the Regular Army on 15 May 1987.  On 31 July 2009, he was released from active duty by reason of having sufficient service for retirement and placed on the Retired List on 1 August 2009.
2.  On 17 January 2012, an advisory opinion was obtained in the processing of this case.  An official in the Office of the Deputy Chief of Staff, G-1, recommended disapproval of the applicant's request because he was not a member of the service on or after 1 August 2009.  

3.  He submitted a rebuttal to the above opinion.  

	a.  He stated he has been unfairly denied a benefit he had earned due to an unreasonable delay in the release of the implementing instructions.  With the exception of the arbitrary 1 August 2009 in-service date, he fully qualified for and met every requirement to transfer his Post 9/11 GI Bill benefit to his family members.

	b.  Early indications were that he would not have a service obligation based upon his time in service and there was no indication that an arbitrary date, 
1 August 2009, would be established for the benefit transfer eligibility.    

	c.  He feels the "massive public campaign" gave no indication of the 1 August 2009 active duty requirement before the official release of implementing instructions on 29 June 2009.  By that time he was already nearly 2 months into his transition leave and working at his new job.  He had no opportunity to adjust his timeline.  Had the instructions been released earlier or any indication of the 
1 August 2009 requirement been made in any of the earlier information and messages he would have postponed his retirement to qualify.

4.  Public Law 110-252, dated 30 June 2008, authorized the Post-9/11 GI Bill effective 1 August 2009.  Section 3319 of this law states that an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.

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 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 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 Component 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 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.  DOD established the criteria for the TEB provision of the Post-9/11 GI Bill on 22 June 2009.  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.  Therefore, this information would have been available to the applicant prior to the effective date of his retirement.

2.  The law was dated 30 June 2008, 6 months prior to his application for retirement and a little over 1 year prior to his retirement, and requires a member to be in an active status at the time he/she requests the transfer.  Those who retired 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.  Although the details of the implementation of the program were published later, the fact that a member would have to be in an active status at the time of the transfer of benefits was known from the date of the law.

3.  Because he was not in an active status on 1 August 2009, he is not eligible to transfer his education benefits to his family members under the TEB provision of the Post-9/11 GI Bill.

4.  The policy does apply to those who retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

5.  DOD, 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 two criteria to qualify to transfer benefits to an eligible dependent:  (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) has at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agrees to serve at least 4 additional years from the date of request, unless retirement eligible.  Since the applicant was released from active duty on 31 July 2009, he is ineligible to transfer benefits.

6.  In view of the above, there is insufficient basis to grant relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __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)                                         AR20110024019



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ABCMR Record of Proceedings (cont)                                         AR20110024019



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