IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20110024501 


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 reconsideration of his earlier request to transfer his Post-9/11 GI Bill Education Benefits to his dependents as an exception to policy.

2.  The applicant states:

   a.  after two years of collective effort to correct his record, he submits new evidence not previously seen by the Board confirming the Secretary of the Army's responsibilities regarding the transfer of his Post 9/11 GI Bill Education benefits and the injustice incurred by not fulfilling this responsibility;
   
   b.  the Directive Type Memorandum (DTM) states the Department of the Army had the responsibility and requirement to provide individual pre-separation or release from active duty counseling to active duty participants with qualifying active duty service on the transfer of Post 9/11 GI Bill benefits and to document the counseling accordingly; 
   
   c.  he previously indicated he was never briefed on the requirement to transfer his Post-9/11 GI Bill Education Benefits before leaving active duty and because the Army failed to fulfill its responsibility and requirement regarding this matter his dependents have been unjustly denied this benefit.

3.  The applicant provides:

* Two Self-authored statements

* Headquarters, United States Army Garrison, Fort Carson, memorandum
* DTM 09-003 (pages 5 and 6)
* Air Force Board for Correction of Military Records Record of Proceedings
* a copy of his original application, argument, and supporting forms and statements and the previous Record of Proceeding.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100011813 on 9 December 2010.

2.  He provides new evidence not previously considered by the ABCMR.  As such, the new evidence warrants consideration by the Board.

3.  The applicant was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT/O-2) in the U.S. Army Reserve on 17 December 1976.  On 4 September 1981, he was ordered to active duty and continuously served until he was retired in the rank of colonel (COL/O-6) on 31 October 2009, having completed 28 years, 1 month, and 27 days of creditable active duty service.

4.  In a memorandum, dated 28 January 2011, the Installation Management Command, Fort Carson, Colorado, Regional Education Officer, stated, while the applicant's counselor appeared to have briefed him regarding his GI Bill eligibility, he cannot confirm the information provided him included his responsibility regarding TEB.

5.  On 22 June 2009, the 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 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 was fully eligible to transfer his education benefits prior to retirement but did not do so.  The program was implemented on 1 August 2009 and he retired on 31 October 2009.

2.  In previous cases, the Office of the Deputy Chief Staff, G-1, opined (after the applicant’s original case was considered) that although significant measures were taken to disseminate the transferability of unused Post 9/11 GI Bill benefits many Soldiers that left the service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving military service.  The applicant provided supporting evidence that his education center officer believes that while he received counseling regarding his Post 9/11 GI Bill, he cannot confirm any counseling regarding the transfer of the benefit.  This corroborates the applicant's claim that he was unaware of the requirements and/or the procedures to apply for such benefit while on active duty.

3.  Accordingly, 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 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 was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100011813, dated 9 December 2010.  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 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)                                         AR20110024501





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ABCMR Record of Proceedings (cont)                                         AR20110024501



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