IN THE CASE OF:	 

		BOARD DATE:	    1 November 2012

		DOCKET NUMBER:  AR20110024985 


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 records to show he transferred his Montgomery GI Bill (MGIB) educational benefits to his daughter under the
Post-9/11 GI Bill.

2.  The applicant states he lived in Tennessee, was a member of the Tennessee Army National Guard (TNARNG), and volunteered to deploy to Iraq with the North Carolina ARNG (NCARNG).  He was injured while serving in Iraq and he was not able to transfer back to the TNARNG because of his medical condition.  During physical disability processing he was told he would receive information on how to transfer his MGIB educational benefits to his daughter.  However, he was being seen by a doctor in Tennessee and he never had the opportunity to meet face-to-face with a transition counselor before he was medically retired.  As a result, he was not able to transfer his educational benefits to his daughter.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served honorably in the Army National Guard of the United States (ARNGUS) from 5 January 1988 through 4 January 1991 and from 
19 September 1991 through 4 January 2000.

2.  He had a break in service from 5 January 2000 through 19 October 2005.

3.  He enlisted in the TNARNG on 20 October 2005.

4.  On 23 February 2006, the applicant was ordered to active duty in support of Operation Iraqi/Enduring Freedom.

   a.  He served in Kuwait and Iraq from 9 May 2006 to 4 May 2007.

   b.  He was promoted to sergeant/pay grade E-5 on 30 November 2006 in military occupational specialty 88M (Motor Transport Operator).

5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 
the applicant was honorably released from active duty on 29 September 2008 based on completion of required active service and transferred to the NCARNG.  He had completed 2 years, 7 months, and 7 days of net active service this period.

6.  On 26 August 2010, a Physical Evaluation Board (PEB) convened and found the applicant was physically unfit and recommended that he be placed on the temporary disability retired list (TDRL) with a combined rating of 70%.  The applicant concurred with the PEB's findings and recommendations and they were approved on 10 September 2010.

7.  U.S. Army Physical Disability Agency, Washington, DC, Orders D253-10, dated 10 September 2010, released the applicant from duty and placed him on the TDRL effective 15 October 2010.

8.  A review of the applicant's military personnel records failed to reveal any evidence that he submitted an application to transfer his educational benefits to his daughter or any other family member.

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).

   a.  The advisory official does not recommend administrative relief.

	b.  He confirms that the applicant's last day in service as a member of the ARNG was 14 October 2010.

   c.  The advisory official notes the applicant was eligible to transfer benefits under the Post-9/11 GI Bill transferability program, but he did not complete a request to transfer benefits on the Department of Defense Transfer of Education Benefits online data base before he left the service.

	d.  The advisory official points out that the NGB, Department of the Army (DA), 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.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009.

10.  On 28 September 2012, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.

11.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended
Title 10 (Armed Forces), U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the armed forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

   b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows:
   
		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.



	c.  To satisfy this legally imposed constraint, a child must be an eligible family member at the time of transfer.  To be considered an eligible family member, a child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.  

       (1)  Children lose eligible family member status upon turning age 21, or at marriage.

	    (2)  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, as verified by DEERS.

	    (3)  Family member children can use transferred benefits up to age 26.

	d.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the number of months allocated to eligible family members can be made at any time, to include after leaving military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his MGIB educational benefits should be transferred to his daughter under the Post-9/11 GI Bill transferability option because he qualified to transfer his educational benefits to her; but he was not provided the appropriate information on how to transfer his benefits.

2.  Records show the applicant was serving in the ARNG on 1 August 2009. Thus, he was eligible to transfer his educational benefits to his eligible family members under the Post-9/11 GI Bill.

3.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he submitted an application to transfer his educational benefits to his daughter (or any other family member) prior to 15 October 2010, the date that he was placed on the TDRL.

4.  The VA, DOD, DA, and NGB 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.  While there may have been some confusion during the early stages after the implementation, the applicant did not take any action to transfer his benefits, even during the more than 14 months that he was serving in the ARNG after the program was implemented and prior to being placed on the TDRL.  Thus, there is no evidence he exercised due diligence.
5.  Therefore, considering all of the evidence and information presented by the applicant, together with the evidence of record, there is no basis for granting the applicant's requested relief.

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)                                         AR20110024985



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ABCMR Record of Proceedings (cont)                                         AR20110024985



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